
Class xQ!3_2i 
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C.OWRIGKT DEPOSfr. 



SECESSION AND 
CONSTITUTIONAL LIBERTY 



VOLUME I 



SECESSION AND 

CONSTITUTIONAL 

LIBERTY 

In Which Is Shown the Right of a Nation to Secede from 

a Compact of Federation and That Such Right 

Is Necessary to Constitutional Liberty 

and a Surety of Union 

BY 

BUNFORD SAMUEL 
Volume I 



" Construction furnishes many other arguments in favour of the con- 
solidating school; ... it supplies a vast mass of precedents and 
argumentation for removing collisions between the state and federal 
governments, and for proving the efficiency of a concentrated supremacy; 
to which I confess that only one poor observation can be opposed, 
namely, that if the state and federal governments may be occasionally 
scratched by the mutual check resulting from the division of powers, it 
may still be considered as the only brier which bears the rose called 
liberty, able to impart that rare flavour to our political nose-gay, highly 
agreeable to some people, but very offensive to others." 

— John Taylor, of Caroline, "New Views on the Constitution." 




THE NEALE PUBLISHING COMPANY 

440 FOURTH AVENUE, NEW YORK 

M C M X X 






«& 



^ 



COPYUGHT, 1920, BY 

Bunpobd Samuel 



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©CU576337 
SEP I 









TABLE OF CONTENTS 
Volume I 

PAGE 

Preface n 

CHAPTER 

I Statement of the Doctrine of Secession . . . .21 

II The Declaration of Independence . . . 24 

III The Confederation 36 

IV The Constitution a Compact by Sovereign States . . 42 

V Mr. Madison's Construction of the Constitutional Com- 
pact 76 

VI Mr. Buchanan's Doctrine 82 

VII Mr. Lincoln's Doctrine 96 

VIII The Ethical Questions Involved . . . . . 98 

Appendices 120 



SECESSION AND 
CONSTITUTIONAL LIBERTY 



SECESSION AND CONSTITU- 
TIONAL LIBERTY 

PREFACE 

"Mr. Bryce . . . intimated ... a decided doubt whether 
the conflict in question would, as an historical episode and inci- 
dent in the great evolutionary record, hereafter loom up in 
the same large proportions it always must bear in the minds 
of those of the American generations directly concerned in it. 
. . . The issues, he more than hinted, were in his judgment 
of no great fundamental importance . . . I . . . failed 
... to concur in Mr. Bryce's judgment; for the more I 
reflected . . . the more I felt convinced that, as the years 
rolled by . . . the conflict he had referred to as now for- 
gotten in Europe would assume ever larger world-proportions 
and become matter of more careful general study. In a word, 
our American Civil War would, when the final verdict is ren- 
dered, . . . become an accepted episode of . . . world- 
wide moment."* 

"Hardly any problem affecting the future of humanity is 
more important than the type and character which the great 
Republic of the West is hereafter destined to assume."! 

If one accepts Mr. Adams's estimate of the moment of "our 
Civil War" (and to reject it consistently one must also widely 
differ from Mr. Lecky), how can the discussion of a political 
doctrine, the cause of so momentous an episode, be, as the 
former designates it, "academic"? 

The word is used by him (and by others) to characterize a 

* Charles Francis Adams, "Trans-Atlantic Historical Solidarity," pp. 
12, 13; Oxford, 1913. 

t Lecky, "Democracy and Liberty," p. 209. 

11 



12 PREFACE 

question which has lost interest for "practical" men, — having 
been settled by force, — and, so used, is a narcotic to prolong 
the sleep of Liberty. Academic! If this question be "aca- 
demic," what of that which developed into the Revolution 
of '76? It is a far cry indeed from a time when a theory of 
government, unaccompanied by oppression, aroused colonies, 
probably as free as any in the world's history, to rebellion,* 
to a time when a question involving (if Mr. Lecky be cor- 
rect) "the future of humanity" has become "academic." Can 
a people so change? Or is man so constituted, alicni appctcns, 
sui profusus, that where a thousand men will cheerfully give 
life for a shred of the cheapest sentiment, for an airy nothing 
of belief at once unknowable and incredible, for a rag of van- 
ity, scarce a score can live in respect for their own or their 
neighbour's rights? 

"Then was the time to tell of virtue being raised from the 
dungeon, where priests and tyrants had confined her ; and that 
science had been courted from the skies to meet her ; then was 
the time to talk of restoring the golden age, without being 
laughed at ; and many seemed to believe that a political millen- 
nium was about to commence." f 

"It was possible to break old traditions, to revise institu- 
tions, and to think out a new philosophy to fit an infant society. 
. . . It was a marvelous opportunity; to the student of his- 
tory and human institution- it seems incredible that it ever 
could have been offered. The men who founded this republic 
recognized that opportunity and tried to use it." + 

Its most distinguished contemporary ( for he may fairly be 
so called) had written not long before: 

"Je congois . . . qu'on ne doit trouver sur la terre que 
tres-peu de republiques. Les hommes sont rarement dignes de 
se gouverner eux-memes. Ce bonheur ne doit appartenir qu' 
a des petits peuples, qui se cachent dans les iles, ou entre des 
montagnes, comme des lapins qui se dcrobent aux animaux 

* Appendix 45. 
t Fisher Ames. 
$ "War, and Other Essays," by William Graham Sumner. 



PREFACE 13 

carnassiers ; mais, a la longue, ils sont decouverts et devores." * 

The words and work of "the men who founded this repub- 
lic" show the countervailing principle upon which they worked. 
"Si une republique est petite, elle est detruite par une force 
etrangere; si elle est grande, elle se detruit par un vice in- 
terieur . . . aussi il y a grande apparence que les hommes 
auraient ete a la fin obliges de vivre tou jours sous le gouverne- 
ment d'un seul, s'ils n'avient imagine une maniere de constitu- 
tion qui a tous les avantages interieurs du gouvernement re- 
publicain et la force exterieure du monarchique. Je parle de 
la republique federative." f It is not necessary to adopt that 
exaggerated tone of reverence, fashionable among us, as to 
either the men or their work. That they were actuated by 
the usual aims and ambitions of mankind their proceedings 
amply show. Yet, also, they were capable of estimating what 
their task meant. Before Mr. Lecky, they felt that their work 
"affected the future of humanity." Hamilton begins The 
Federalist: 

"You are called upon to deliberate on a new constitution for 
the United States of America. The subject speaks its own 
importance; comprehending in its consequences, nothing less 
than the existence of the UNION, the safety and welfare of 
the parts of which it is composed, the fate of an empire, in 
many respects the most interesting in the world. It has been 
frequently remarked that it seems to have been reserved to 
the people of this country, by their conduct and example, to 
decide the important question, whether societies of men are 
really capable or not, of establishing good government from 
reflection and choice, or whether they are forever destined to 
depend, for their political constitutions, on accident and force. 
If there be any truth in the remark, the crisis, at which we are 
arrived, may with propriety be regarded as the era in which 
that decision is to be made; and a wrong election of the part 
we shall act, may, in this view, deserve to be considered as the 
general misfortune of mankind." 

♦Voltaire, "Dictionnaire Philosophique." 

t Montesquieu, "De 1'Esprit des Lois." Book 9, Chap. 1. 



14 PREFACE 

From the inaugural of Washington to the ephemeral news- 
paper letter of the period, the same note of free choice, of gov- 
ernment founded, not upon force, bat free assent, and insti- 
tuted for "the safety and welfare of the parts which com- 
posed" the Union, is everywhere struck, — the more signifi- 
cantly that many of the leaders preferred a government more 
consolidated and coercive than they were able to achieve. 1 

Was it all a fairy tale? Men had died happy that the eyes 
of Liberty, opened to their dying kiss as they broke the hedge 
of bayonets, would never again be closed by force or fraud. 
Little more than a hundred years later, within the easy span 
of two lives, indeed, while one then born might conceivably 
still be living, we are told that discussion of the most vital 
point of this moment" ms matter is "academic," in that it has 
been settled by war; i. r., that "the question whether societies 
of men are really capable or not of establishing good govern- 
ments from reflection and choice, or whether they are forever 
destined to depend, for their political constitutions, on acci- 
dent and force," has been decided by force. 

Not only does the word "academic" thus restore those politi- 
cal ideals which the men of the Constitution supposed them- 
selves to have shattered: it denies the teaching of history, 
throughout which force appears as the arbiter of the moment, 
indeed, yet fundamentally episodic. Reason, organically slow 
— reacting againsl force only when the ill effects of the latter 
become so general as to be inevitably obvious to the lower 
average of the majority mind -finally confirms or annuls its 
judgment: as nature, in the physical world, renders once more 
fertile the debris of its own convulsions. The principle is 
written throughout human progress. Without it there could 
not have been progress. 

It is true that, 

"During the war, necessity" [or what was considered such] 
"took the place of the Constitution, and we see the written 
guarantees of liberty grow dim in the smoke of battle. . . . 
There is no statute of limitation in the law of cause and effect, 
and the usurpations of the war and Reconstruction days are 



PREFACE 15 

the fundamental causes of the existing conditions to-day." * 

The immediate results of a war may be readily pointed out : 
"Our Civil War may serve as an example . . . Think of the 
doctrines which were set aside as false, and of the others which 
were established as true ... of the constitutional principles 
which were permanently stamped as heretical or orthodox." f 

"A strong government was needed ; and that fact has opened 
the way for Congress to interfere with private business, for 
instance in changing the tariff . . . much more frequently 
and extensively . . . Another significant fact is that the old 
controversy about internal improvements has died away since 
our government was centralised by war; and much money is 
wasted under that pretext by Congress." J 

Yet, in a larger sense, there is "a statute of limitation in the 
law of cause and effect." 

Political, like physical, disease, if within a nation's recuper- 
ative strength, permits recovery; if not, a people (as such) 
dies, — to be succeeded by a healthier organism. 

From this point of view, then, inquiry cannot be "academic," 
unless the doctrine of secession has been effectively denied by 
reason, finally confirming the decree of force. But nothing 
could be more absurd than this supposition; a vast majority 
of those citizens upon whose intelligent understanding of the 
past must depend the welfare of the future do not even know 
what that doctrine is, still less the facts for, or against, it. 

Although a voluminous literature on the subject might indi- 
cate that reason has already held its session, it may be said 
that even a true issue between the opposing doctrines has not 
been fully made up. Confusion of thought, political and ethical 
sophistry, and falsification of fact have made a Lernean 
marsh, wherein hydra-headed error is yet to be destroyed be- 
fore the point is even attained where honest and informed 
divergence of opinion is generally possible. 

* Franklin Pierce, "Federal Usurpation" ; N. Y., 1908. 
t William Graham Sumner, "War." 

t Frederick May Holland, "Liberty in the 19th Century"; N. Y., 18^9. 
Cf. Appendix 6. 



16 PREFACE 

When Sir James Fitzjames Stephen can say: "The Con- 
stitution no doubt did leave unsolved the great question as to 
the right of secession. The question whether or not, under 
the Constitution, construed as a legal document, the States 
had a right to secede, is about as ingenious a puzzle as any- 
other question as to the meaning of a studiously ambiguous 
document," * discussion of it can scarcely be academic from 
this point of view. 

Still less is it from that of sentiment. Force, attempting to 
destroy, preserves a creed, — allying reason with emotion, with 
admiration for fortitude, with pity for misfortune, with grati- 
tude for self-devotion, with all that satisfies the human craving 
for excitement and hero-worship. 

"Loin de nous amollir, que ce sort nous retrempe! 
Sachons le prix du don, mais ouvrons notre main. 
Nos pleurs et notre sang sont l'huile de la lampe 
Que Dieu fait porter devant le genre humain." 

That lamp has gloriously, yet dangerously, lit the advance 
of humanity despite, and because, of force. 

Though the historian should, with Tacitus, write sine ira, 
he cannot do so upon this subject for the reason given by that 
author, quorum causas procul habeo. To no man are the title- 
deeds of his liberty afar off 

"for free liking 
Is yharnit our all othir thing." 

If he does so, it can only be upon less personal, more philo- 
sophic ground, viz.: the necessary acceptance of human error 
and wrong. Yet, if, remembering human infirmity, he must 
write sine ira, even of those who falsify the charter of free- 
dom, it does not follow that he should write without gratitude 
of those who have withstood the attempt. In just so much as 
that infirmity is a palliative to anger in recording evil, it correl- 
atively enhances gratitude to those who "know the cost of the 
gift, but open the hand." 

Mr. Judah P. Benjamin, apostrophizing the seceding South- 
ern Senators, said : 

* "Essay on The Federalist." 



PREFACE 17 

"When in after days the story of the present shall be writ- 
ten, when history shall have passed her stern sentence . . . 
your names will derive fresh lustre . . . And when your 
children shall hear repeated the familiar tale it will be with 
glowing cheek and kindling eye, their very soul will stand a 
tip-toe as their sires are named and they will glory in their 
lineage from men of spirit as generous and of patriotism as 
high spirited as ever illustrated or adorned the American 
Senate. ,, * 

The prophecy may scarce be said to have been fulfilled — 
excepting in so far as regards filial feelings. The "iniquity of 
oblivion hath scattered her poppy." Yet it does so over the 
just and the unjust. That "stern sentence of history" is so 
soon forgotten; perhaps so little worth! Chance, roguery, 
ignorance, on the bench with justice, juggle the laurel and the 
pillory. Need one care which is decreed his name? "He 
knows the cost of the gift, but opens his hand;" and, for the 
rest, "What have I said amiss that the Athenians applaud 
mer 

Yet, even in this aspect, the question is not "academic." In 
this aspect it is farthest from being "academic." The import 
of the stern sentence of history concerns the judges, not the 
careless shades, its subject. 

"Des ordures des grands le poete se rend sale 
Quand il peint en Caesar un ord Sardanapale, 
Quand un traistre Sinon pour sage est estime, 
Desguisant un Neron en Trajan bien-ayme; 
Quand d'eux une Thais une Lucrece est dite, 
Quand ils nomment Achill' un inf ame Thersite ; 
Quand, par un fat sgavoir ils ont tant combattu 
Que, souldoiez du vice, ils chassent la vertu." 

"The noblest human work, nobler even than literature and 
science, is broad civil liberty, well secured and wisely 
handled." t 

Without this, arts, sciences, literature, are but palliations — 
when not aggravations, — of degradation. 

* February 4, 1861. 
t F. Lieber. 
1—2 



18 PREFACE 

When Liberty grows dim, what is best 

Then becomes worst, what loveliest most deformed. 

And civil liberty to be "well secured and wisely handled," 
must have its roots in the truth of history. False ideals, mean 
admirations, repay those who follow them with destruction. 
Justice to predecessors is inexorably mingled with the happi- 
ness of posterity. 

If, then, reason has not said its last word, then but for one 
reason can further discussion be "academic"; viz., that like 
Livy's Rome, the commonwealth ad heec tempora, quibus nee 
vitia nostra, nee remedia pati possumus, perventuni est. We 
have not yet reached the point at which our political vices have 
become unbearable. When one perceives the ever-swelling 
myths in which avarice and political advantage have enveloped 
false causes and characters, the growing tendency to transmute 
the idea upon which free democratic political institutions are 
necessarily founded, viz.: that the average citizen is capable of 
taking care of himself, into the underlying principle of despot- 
ism, viz.: that the average citizen must be taken care of by 
government ; * when one perceives the already too evident 
results, one may not indeed avoid the fear that we are near the 
point where we are unable to bear their remedies. 

"The object of Tacitus," as Coleridge says, "was to demon- 
strate the desperate consequences of the loss of liberty on the 
minds and hearts of men"; he may have written sine ira, but 
he wrote "with despair in his breast breathed into many lines 
of his melancholy annals." I But he was looking backward. 
Looking forward, one may still say : "Quod futurum sit, plane 
nescio, spes tandem una est, aliquando po pulton romannni nia- 
jorum simile fore." Cicero's hope proved vain for the 
Roman ; the American people may yet return to the political 
ideals of their forefathers — "when the .American spirit was 
in its youth . . . liberty, sir, was then the primary object." % 

In conclusion, though in so intricate an impeach, the asser- 
tion of Bayle may scarce be fully supported ; "Que les verites 

* v. John Taylor of Caroline, "P. & S."; especially Appendix 6a. 

t Lieber. 

t Patrick Henry. 



PREFACE 19 

historiques peuvent etre poussees a un degre de certitude plus 
indubitable que ne Test le degre de certitude a quoi Ton fait 
parvenir les verites geometriques ; bien entendu que Ton con- 
siderera ces deux sortes de verites selon le genre de certitude 
qui leur est propre," it is not a little if one may only say with 
Bacon : "In those things wherein I have erred, I am sure, I 
have not prejudiced the right with litigious arguments.' , 

The author acknowledges with gratitude the courteous and 
helpful efficiency of Mr. Luther E. Hewitt, Librarian of the 
Bar Association of Philadelphia. From New England friends, 
for anything herein asserted if untrue, he asks forgiveness. 
Let them not be aggrieved by truth. In either case, 

" — One may maintain 
Peace sure with piety, though it come from Spain." 

Note: It has been thought unnecessary to append a bibli- 
ographical apparatus. The evidence upon which the deter- 
mination of the subject should depend is extant in the instru- 
ment of the Constitution, the records of the acts and proceed- 
ings of the representatives of the people in the official bodies, 
the Conventions and Congresses of the time; it is of undis- 
puted authenticity, not of unreasonable bulk, easy of access. 
(To think that records of a people's freedom, not veiled in the 
mist of years, but before the ink with which they were written 
had faded, should have so successfully been perverted, is 
indeed a counsel of despair!) It has seemed unnecessary to 
enumerate expository works, able and authoritative as are 
many of them, further than as cited; when, it is hoped, they 
are indicated sufficiently for reference and acknowledgment. 

January, 1917. B. S. 

November 15, 19 18. 
P.S. — This work, then about to issue from the press, was 
withheld when the United States entered on the war with Ger- 
many. One does not discuss family troubles while a burglar 
is trying the door. The worst of it is, dissenting members will 
consider it equally poor taste to discuss them amid the rejoicing 
of victory — or at any other time. 



20 PREFACE 

Tunc etiam Cassandra. 

At least the sentiments as to the rights of self government of 
small nations, sacredness of treaties, etc., which to-day, pol- 
ished up as good as new, adorn the speeches of statesmen and 
make beautiful the feet of the editor upon the newspaper — 
these at least illuminate the study of that League of Nations 
which existed in these United States. Coleridge deplores that 
the study of history, like the lantern at a ship's stern, but serves 
to light the wastes traversed ; but possibly some reflected light 
may coldly furnish forth the prospect of that "League of 
Nations," our to-day's political panacea. It at least serves to 
show, though possibly the patient never believes, that there is 
no panacea in government or medicine. That, as James Fitz- 
james Stephen says : "Democracy has, as such, no definite or 
assignable relation to liberty. The degree in which the gov- 
erning power interferes with individuals depends upon the size 
of the country, the closeness with which the people are packed, 
the degree in which they are made conscious by actual experi- 
ence of their dependence upon each other, their national tem- 
per, and the like. The form of government has very little to 
do with the matter." (v. also Appendices 36A & 45, p. 391.) 






CHAPTER I 

STATEMENT OF THE DOCTRINE OF SECESSION 

The Confederate government, asking recognition from 
France, made to M. Thouvenel, Minister of Foreign Affairs, 
July 21, 1862, through its Commissioner, Mr. Slidell, the 
following statement, viz. : 

"Their [the United States] first union was formed by a 
compact of sovereign and independent states upon covenants 
and conditions expressly stipulated in a written instrument 
called the Constitution. 

"In that Union the States constituted the units or integers 
and were bound to it only because the people of each ac- 
corded to it in their separate capacities through the acts of 
their representatives. That Confederacy was designed to unite 
under one Government two great and diverse social systems, 
under the one or the other of which all the States might 
be classified. As these two social systems were unequally rep- 
resented in the common Government, it was sought to protect 
one against a warfare which might be urged by the other 
through the forms of law by carefully designed restrictions 
and limitations upon the power of the majority in the common 
Government. Without such restrictions and limitations it is 
known historically that the Union could not have been formed 
originally. But the dominant majority, which at last proved 
to be sectional in its character, not only used the machinery 
of Government which they wielded to plunder the minority 
through unequal legislation in the shape of protective tariffs 
and appropriations made for their own benefit ; but proceeding 
from step to step, they waged through the forms of law a 
war upon the social system of the slaveholding States and 
threatened, when fully armed with political power, to use the 

21 



22 SECESSION AND CONSTITUTIONAL LIBERTY 

Government itself to disturb the domestic peace of those 
States. Finding that the covenants and conditions upon which 
the Union was formed were not only persistently violated, but 
that the common Government itself, then entirely in the hands 
of a sectional majority, was to be used for the purpose of 
warring upon the domestic institution which it was bound by 
express stipulations to protect, thirteen of the slaveholding 
States felt it to be due to themselves to withdraw from a 
Union when the conditions upon which it was formed either 
had been or were certainly about to be violated." 

This statement lays the groundwork of the doctrine of 
Secession in the assertion that "Their first union was formed 
by a compact of sovereign and independent states ... In 
that Union the States constituted the units or integers and 
were bound to it only because the people of each accorded to 
it in their separate capacities," etc. Having done this, it passes 
to a recital of injuries suffered, which, if true, afford justifica- 
tion for exercising the "natural" right of resistance, or revo- 
lution, but, in themselves, give no Constitutional right of 
"secession." "Secession" is not a (so-called) "natural" right. 
It may be established only upon precedent and law. 

The "Declaration of the Immediate Causes which induce and 
justify the Secession of South Carolina" develops the doctrine 
in full; and, being published by the authority of the Conven- 
tion which enacted the Ordinance of Secession of that State, 
may serve as the official statement of the doctrine. After re- 
citing the Declaration of Independence and the Treaty 
acknowledging the same, it proceeds : 

"Thus were established the two great principles asserted 
by the Colonies, namely : the right of a State to govern itself; 
and the right of a people to abolish a Government when it 
becomes destructive of the ends for which it was instituted. 
And concurrently with the establishment of these principles, 
was the fact, that each Colony became and was recognized by 
the Mother Country as a free, sovereign and independent 
state. . . . We hold that the Government thus established 
[i. c, by the Constitution] is subject to the two great principles 



STATEMENT OF THE DOCTRINE OF SECESSION 23 

asserted in the Declaration of Independence; and we hold 
further, that the mode of its formation subjects it to a third 
principle, namely: the law of compact. We maintain that 
in every compact between two or more parties, the obliga- 
tion is mutual; that the failure of one of the contracting par- 
ties to perform a material part of the agreement entirely re- 
leases the obligation of the other; and that where no arbiter 
is provided, each party is remitted to his own judgment to 
determine the fact of failure, with all its consequences/ ' 

The doctrine of Secession depends upon these principles of 
law ; the first two peculiarly American in their establishment ; 
the other a long-established principle of international law, and, 
as such, applicable to all peoples. It is then necessary to ascer- 
tain if the "Union was formed by a compact of sovereign and 
independent States upon covenants and conditions expressly 
stipulated" (in a written instrument called the Constitution) 
before inquiring whether, this being so, "the mode of its for- 
mation subjects it to a third principle, namely : . . . that in 
every compact between two or more parties, the obligation is 
mutual; that the failure of one of the contracting parties to 
perform a material part of the agreement entirely releases 
the obligation of the other ; and that where no arbiter is pro- 
vided, each party is remitted to his own judgment to determine 
the fact of failure with all its consequences." 



CHAPTER II 



THE DECLARATION 



Was "the Union formed by a compact of sovereign and 
independent States"? 

This question necessarily deals with four political periods, — 
the Colonial, and those of the Declaration of Independence, 
the Confederation, and the creation of the Constitution. 

Colonial conditions may be briefly stated. It is not seriously 
denied that, prior to the Declaration of Independence, the Brit- 
ish Colonies in America were without political connection save 
in their common dependence on Great Britain, and in brief 
local confederacy for particular purposes. 2 

"The thirteen colonies, as we all know, were independent 
commonwealths with respect to each other. They had little 
sympathy and a great deal of jealousy. They came into a 
union with each other upon terms which were stipulated and 
defined in the Constitution, but they united only unwillingly 
and under the pressure of necessity. " * 

The question to be discussed, then, arises with the act which 
declared their independence of Great Britain. 

On the 15th of May, 1776, the convention of Virginia 
passed the following resolutions : 

"... The king's representative in this Colony hath not 
only withheld all the powers of government from operating 
for our safety, but, having retired on board an armed ship, 
is carrying on a piratical and savage war against us, tempting 
our slaves, by every artifice, to resort to him, and training and 
employing them against their masters. In this state of ex- 
treme danger, we have no alternative left but an abject sub- 

* William Graham Sumner, "The Conquest of the United States by 
Spain." 

24 



THE DECLARATION 25 

mission to the will of those overbearing tyrants, or a total 
separation from the crown and government of Great Britain, 
uniting and exerting the strength of all America for defence, 
and forming alliances with foreign powers for commerce and 
aid in war. Wherefore, appealing to the SEARCHER OF 
HEARTS for the sincerity of former declarations expressing 
our desire to preserve the connexion with that nation, and that 
we are driven from that inclination by their wicked councils, 
and the eternal laws of self-preservation : 

"Resolved, unanimously, That the delegates appointed to 
represent this Colony in the General Congress, be instructed 
to propose to that respectable body, to declare the United 
Colonies free and independent States, absolved from all alle- 
giance to, or dependence upon, the crown or parliament of 
Great Britain ; and that they give the assent of this Colony to 
such declaration, and to whatever measures may be thought 
proper and necessary by the Congress for forming foreign 
alliances, and a confederation of the colonies, at such time and 
in the manner as to them shall seem best ; Provided, the power 
of forming government for, and the regulations of the internal 
concerns of each Colony, be left to the respective colonial 
legislatures. 

"Resolved, unanimously, That a committee be appointed to 
prepare a Declaration of Rights, and such a plan of gov- 
ernment as will be most likely to maintain peace and order 
in this Colony, and secure substantial and equal liberty to the 
people. " 

In accordance with this, 

"In Congress, Friday, June 7, 1776, the delegates from Vir- 
ginia moved, in obedience to instructions from their constitu- 
ents, that the Congress should declare that these United 
Colonies are, and of right ought to be, free and independent 
states . . . and a Confederation be formed to bind the 
colonies more closely together. " * 

♦Jefferson, "Autobiography," "Jefferson's Works," edited by H. B. 
Washington. Vol. I, p. 12; N. Y., 1853. 



26 SECESSION AND CONSTITUTIONAL LIBERTY 

The ensuing resolution of Congress (the real Declaration), 
precedent to the Declaration of Independence, is as follows : 

"Resolved that these United Colonies are, and of right 
ought to be free and independent states, that they are ab- 
solved from all allegiance to the British Crown; and that all 
political connexion between them and the state of Great 
Britain is, and ought to be, totally dissolved.'' 

The same phraseology obtains in "the Declaration of Inde- 
pendence," which continues: 

"and that as free and independent states, they have full 
power to levy war, conclude peace, contract alliances, estab- 
lish commerce, and to do all other acts and things which inde- 
pendent states may of right do." 

In the Virginia Resolutions is unequivocally to be perceived 
a State (i. e., "Nation") declaring its injuries, its readiness to 
confederate with other States for a certain purpose, and re- 
serving to itself self-government under that confederation. 
The phraseology of the ensuing resolution of Congress and 
Declaration of Independence is strictly in consonance with this 
declaration and with the consequences which would naturally 
ensue from precedent conditions, viz.: that each colony, being 
severally a dependency on Great Britain and unconnected with 
any other power, upon becoming independent of that coun- 
try became a "free and independent state." The sequence of 
events, the phraseology, the legal consequence, and actual re- 
sults are thus in entire agreement. The former do not indi- 
cate the latter to be that the colonies became a "free and inde- 
pendent state." 3 

"Whilst the Colonies enjoyed the protection of the parent 
country . . . against foreign danger; and were coerced by 
its . . . control, against conflict among themselves, they 
continued independent of each other. . . . 

"The Congress finding . . . that the popular voice began 
to call for an entire and perpetual dissolution of the political 
ties which had connected them with G. B. proceeded on the 



THE DECLARATION 27 

memorable 4th of July, 1776, to declare the thirteen Colonies 
independent States. 

"During the discussions of this solemn Act, a Committee 
consisting of a Member from each colony had been appointed 
to prepare and digest a form of Confederation for the future 
management of the common interests which had hitherto been 
left to the discretion of Congress guided by the exigencies of 
the contest, and by the known intentions or occasional instruc- 
tion of the Colonial Legislatures." * 

Although the very Resolutions asserting independence call 
for a confederation of the states, thereby necessarily excluding 
the idea of a consolidation of them, effected by the Resolutions 
the doctrine (suggested by Mr. James Wilson? 4 ) that the 
States became independent, not severally, but as one body, has 
been accepted as a basis of party belief, has played its part in 
destroying the original theory of our government, and must 
be met in any attempt to retrace that theory. 

"From the preceding view of the colonies prior to 1774, and 
while the ancient relations between them and the mother coun- 
try continued, it is most manifest that they were as separate 
from each other, in all matters of internal government, as they 
now are. . . . No other controlling power did, or could 
exist then, under the old constitution of the Kingdom, than 
does now under that of the Union, save such as it imposed. 

"Though they had assembled in Congress to consult on their 
common concerns, they had never made a government over 
themselves; and when they met in 1774, their proceedings 
showed in what capacity they acted. They first resolved, that 
each colony should have one vote, which was an explicit decla- 
ration, that they acted separately in all they did; their decla- 
ration of rights and resolutions are also too unequivocal for 
any double or doubtful meaning to be attached to them. 

"After reciting the grievances suffered in consequence of 
certain acts of parliament, and of the crown, they declare the 
character and authority under which they act. The good peo- 
ple of the several colonies of New Hampshire, Massachusetts 

* Madison, Preface to "Debates in Convention," 1787. 



28 SECESSION AND CONSTITUTIONAL LIBERTY 

Bay, Rhode Island and Providence Plantations, Connecticut, 
New York, New Jersey, Pennsylvania, New Castle, Kent, and 
Sussex on the Delaware, Maryland, Virginia, North Carolina, 
and South Carolina, jointly alarmed at these arbitrary pro- 
ceedings of parliament and administration, have severally 
elected, constituted, and appointed deputies, to meet and sit in 
the city of Philadelphia, in order to obtain such establishment 
as their religion, laws, and liberties, may not be subverted. 

" 'Whereupon, the deputies so appointed, being now assem- 
bled in a full and free representation of these colonies, taking 
into their most serious consideration the best means of attain- 
ing the ends aforesaid; do, in the first place, as Englishmen, 
their ancestors, in like cases have usually done, for asserting 
and vindicating their rights and liberties, declare, 

" That all the inhabitants of the English colonies in North 
America by the immutable laws of nature, the principles of 
the English constitution, and their several charters and com- 
pacts, have the following rights : 

" 'Resolved, N.C.D. i. That they are entitled to life, lib- 
erty and property; and they have never ceded to any foreign 
power whatever, a right to dispose of either without their 
consent. 

"'Resolved, N.C.D. 2. . . . 

<( 'Resolved, N.C.D. 7. That these his majesty's colonies 
are likewise entitled to all the immunities and privileges 
granted and confirmed to them by royal charters, or secured by 
their several codes of provincial laws. 

" 'All and each of which the aforesaid deputies, in behalf 
of themselves and their constituents, do claim, demand, and 
insist on, as their indubitable rights and liberties; which can- 
not be legally taken from them, altered or abridged, by any 
power whatever, without their own consent, by their represen- 
tatives in their several provincial legislatures.' 1 Journ. Cong. 
28,9. 

"An Association was formed and signed by the members 
from the different colonies, beginning, 'We, his majesty's most 
loyal subjects, the delegates of the several colonies of New 
Hampshire,' etc., etc. 'And therefore we do for ourselves 



THE DECLARATION 29 

and the inhabitants of the several colonies whom we repre- 
sent . . .' 

"The letter to the people of Great Britain was headed in 
the same manner, and signed by the delegates of the several 
colonies. 1 Journ. 32. So were their other letters and ad- 
dresses at that time, 62. 

"These proceedings cannot be mistaken in the distinct asser- 
tion, that all the powers of government were vested in the 
several provincial legislatures, subject only to the restraints 
mentioned in the fourth resolution. There was no state or 
nation, to which the several colonies stood in the same relation 
as the counties and towns of England did . . . The spirit 
and principles of this declaration were adopted by the colonies 
and congress. In October, 1775, congress, on the application 
of the provincial convention of New Hampshire, recom- 
mended them to call a full and free representation of the peo- 
ple, to establish such government as they thought proper, to 
continue during the dispute with Great Britain. . . . This 
was done in a convention of the people in January, 1776, by a 
constitution which remained in force till 1784; declaring the 
dissolution of all connection with the British government, and 
'assuming that equal rank among the powers of the earth for 
which nature had,' etc. 

"The royal government had ceased in South Carolina in 
September, 1775, under the recommendation of Congress in 
Nov. : . . . the people of that state formed a constitution in 
March, 1776, which all officers were sworn to support, 'till an 
accommodation with Great Britain, or they should be released 
from its obligation by the legislative' authority of the 
colony. . . .' 

"In April, 1776, congress resolved 'that trade was subject 
to such duties and impositions as by any of the colonies, and 
such regulations as may be imposed by the respective legis- 
latures/ etc., which resolution congress directed to be com- 
municated to foreign nations. ... 

"In May they resolved 'that every kind of authority under 
the crown should be totally suppressed, and all the powers of 
government under the authority of the people of these colonies 



30 SECESSION AND CONSTITUTIONAL LIBERTY 

should be exerted. That it recommended to the respective 
assemblies and conventions of the united colonies, where no 
government sufficient to the exigency of their affairs hath been 
hitherto established, to adopt such a government, as shall, in 
the opinion of the representatives of the people, best conduce 
to the happiness and safety of their constituents in particular, 
and America in general . . . ' 

"On the 24th of June they declared, by their resolutions, 
'that allegiance was due to the several colonies, that adherence 
to the King was treason against the colony within which the 
act was committed;' and recommended that laws should be 
passed for punishing treason . . . 4 1-2 

"In June the people of Virginia, in full convention, adopted 
a constitution; declaring that all power is vested in, and de- 
rived from the people, who have an indefeasible right to insti- 
tute, reform, alter, or abolish government; that none separate 
from, or independent of that of Virginia, ought to be erected 
or established within the limits thereof; and that the govern- 
ment, under the British crown, is totally dissolved . . . This 
constitution remained unaltered till 1830. . . . 

"On the 2d of July, 1776, the people of New Jersey, in con- 
vention, declared the authority of the Crown to be at an end ; 
the royal government dissolved . . . and adopted a consti- 
tution, to become void on a reconciliation with Great Britain 
. . . which is yet unchanged . . . June 19th deputies 
from the cities and counties of Pennsylvania, approved the 
resolution of Congress passed in May; resolved that a con- 
vention be called to form a government on the authority of 
the people only; and declared, on the 24th, their willingness 
to concur in a vote of the congress declaring the united col- 
onies free and independent states; provided, the forming the 
government, and regulating the internal police of the colony, 
be always reserved to the people of the colony . . . 

"As there never was any other political connection between 
the colonies, than such as resulted from their common origin, 
by separate charters from the crown, in virtue of the royal 
prerogative, and the general supremacy of parliament, which 
extended to all the dominions of Great Britain ; it was a neces- 



THE DECLARATION 31 

sary consequence of the extinction of both the prerogative and 
legislative powers of the mother country, that there could 
remain no restraint on the legislation of the colonies, save what 
the people thereof should impose. No extraneous power could 
act within their respective limits, without their consent; from 
the moment that the authority of Great Britain ceased to 
operate, that of each colony became absolute and sovereign; 
and no government could exist thereout, which could prescribe 
laws within it. . . . Such was the unanimous expression of 
the universal sense of the people, in primary assemblies, in 
conventions of counties and states, legislatures and congress, 
from 1774; four colonies had become states by the adoption 
of constitutions of government by the inherent power of the 
people; the formation of a fifth was in progress on the same 
principles, which were solemnly promulgated by the original 
declaration of rights of the several colonies, and the people 
thereof. In June, 1776, there was not a colony in which any 
authority under Great Britain was exercised, except in war- 
fare; and when Congress resolved that all allegiance was due 
to the several colonies; that treason was punishable in the 
colony wherein the act was committed ; and that the regulation 
of trade was subject to the laws of the respective legislatures ; 
it was tantamount to a declaration, that they were then inde- 
pendent, and had, in fact, 'assumed their equal station among 
the powers of the earth.' Congress had recommended that all 
the colonies should do so, by the establishment of a govern- 
ment on the authority of the people only; four states had exer- 
cised, a fifth had entered upon the exercise of this authority; 
and a convention of the people thereof had assembled, before 
the declaration of independence, by congress, was engrossed 
or signed by any member . . . 

"From these proceedings the political results were plain and 
self-evident; each colony, by the uncontrollable exercise of all 
the powers of self-government, had in fact become an inde- 
pendent state; five were so, by their declarations of inde- 
pendence in the most solemn manner. No sovereignty did, or 
could exist over them, unless that of Great Britain should be 
restored by a reconciliation; which not happening, their dec- 



32 SECESSION AND CONSTITUTIONAL LIBERTY 

laration of independence, in their separate conventions, became 
absolute; and these states were independent according to the 
universal opinion of the country, which is most clearly ex- 
pressed in the language of this Court. 4 Cr. 212, M'llvaine vs. 
Cox. 'This opinion is predicated upon a principle, which is 
believed to be undeniable, that the several states which com- 
posed this Union, so far at least as regarded their municipal 
regulations, became entitled, from the time when they de- 
clared themselves independent, to all the rights and powers of 
sovereign states, and that they did not derive them from con- 
cessions by the British King. The treaty of peace contains a 
recognition of their independence, not a grant of it. From 
hence it results, that the laws of the several state governments 
were the laws of sovereign states; and as such were obligatory 
upon the people of such states, from the time they were 
enacted. . . .' Such being the political condition of the col- 
onies and states, it becomes a question of easy solution whether 
congress intended to make a solemn promulgation of these 
principles to the world, by declaring the great result of the 
revolution to have been, or to be, the establishment and con- 
tinued existence of thirteen independent nations and states, 
with the powers of government separate and sovereign in 
each; or of one nation, one state, with one national govern- 
ment. Whether this great and crowning act of the revolution 
was intended to perpetuate, or prostrate, the rights and powers 
of the colonies, the states, and the people thereof, and to 
substitute one government in place of thirteen then in exis- 
tence. To absolve the people of these states not only from 
their allegiance to the British crown, but from that allegiance 
which Congress, ten days before, had resolved the people owed 
to the several colonies; to abolish as well the royal, as the 
colonial and state governments, within the boundaries of the 
United States; to suppress alike the British constitution and 
those state constitutions, which, two months before, they had 
recommended to be formed, by the authority of the people of 
the several colonies alone; to proclaim to foreign nations in 
April, that the power to impose duties, impositions, and regu- 
lations on trade, was in the respective legislatures of the col- 



THE DECLARATION 33 

onies; yet, in July, to declare to the world that the power 'to 
establish commerce,' etc., existed in one state, in one govern- 
ment, acting over all the states in their unity of political 
power, as the representatives of one people, of the one state. 
Taken in this sense, there must have been two American revo- 
lutions; one to suppress the government of Great Britain, the 
other to suppress the governments of the states, each of which 
was by the right of revolution; for there is no more pretence 
of any authority by the people of the states, or in the creden- 
tials of the members of congress, who were appointed by 
colonial or state legislatures, to abolish state governments, and 
constitute a national one, invested with supreme legislative 
powers over all the states, than there was by the King and 
parliament to abolish their supreme legislative, or prerogative 
powers, by any act of the several colonies or states, or when 
they were assembled in congress by their deputies. The states, 
by their several representatives, effected the first revolution 
in an assembly of the states; the congress effected the second, 
by imposing on the states — people, a new sovereign — them- 
selves. Taken in the other sense, the declaration of congress, 
on the 4th July, 1776, announced one great revolution; on 
the great principles solemnly declared in 1774, and reiterated 
in every political movement by the people, whenever they ex- 
pressed their opinion, in large or small popular assemblages, 
or through their representatives at home, or those deputed by 
their local legislatures, to consult, deliberate, and resolve in a 
congress.* 

"If congress was, in 1776, a national legislature, with 
power to pass laws independently of the several states, and to 
control state legislatures, all subsequent acts were worse than 
useless; for the government was more absolute than the pres- 
ent. 5 The declaration of independence admits of no qualifica- 
tion of the unlimited powers of a state. Taking it as the 
creation or recognition of a government, instituted by one 
people of one state, as guaranteed by the treaty of alliance with 
France, and acknowledged by the treaty of peace with Great 

* Henry Baldwin, "General View of the Constitution," pp. 68-74; Phila- 
delphia, 1837. 
1—3 



34 SECESSION AND CONSTITUTIONAL LIBERTY 

Britain; it was 'absolute and unlimited in matters of govern- 
ment, commerce, and possessions'; and all the rights of the 
crown, and powers of parliament, devolved upon, and passed 
definitively to the one state and nation, as well to the soil as the 
jurisdiction of the whole territory within the boundaries of the 
United States. That this view of the declaration of inde- 
pendence is contradicted by historical facts, by all the political 
events of the revolution, the proceedings of congress, the gen- 
eral and state conventions, and the adjudications of this Court 
is, I think, fully apparent . . . That there were thirteen 
colonies, with separate governments in each, without any con- 
trol by one over another, is admitted ; that they assembled by 
different representations; that they voted, acted, and signed 
the declaration by their separate delegates, is apparent on the 
journals of congress, and the face of the paper. The mem- 
bers who assembled as the delegates of colonies, were the 
same, who, as the representatives of the states, made the dec- 
laration in the name, and by the authority of the good people 
of these colonies ; which was : 'That these united colonies are, 
and of right ought to be, free and independent states.' 

"If this declaration had no bearing on the constitution, or 
if that instrument was not the most ill-fated one that was ever 
devised and written by man, not only being itself perverted, 
but made the cause of perverting every other instrument in 
writing which forms a part of its history, or can be referred 
to for illustration; there would be the same union of opinion 
as to its meaning as there has been for one hundred and fifty 
years in England, as to the declaration of rights, wrongs, and 
the effects thereof, in 1688. That it consummated a revolution 
in government, whereby all colonial dependence having ceased, 
each political community assumed, as a state, that separate 
and equal station among the powers of the earth, which other 
independent states held, and which each state then and thence- 
forth had and enjoyed ; would have been the universal opinion, 
if no question of political power was involved in mystifying it. 
If this paper is taken as it reads, and means what it says, it 
contains neither a grant or recognition of the existence of any 
legislative powers within the limits of the once colonies and 



THE DECLARATION 35 

then states; other than what was and had been in the several 
legislatures thereof, from their first settlement; and if it can- 
not be made so by bold assertion, or misinterpretation, there 
is no foundation for the theory of the unity of power in the 
'one people,' in constituting a government for the United 
States." 6 * 

* Henry Baldwin, "View of the Constitution," pp. 77~7^',- Philadelphia, 
1837. 



CHAPTER III 



THE CONFEDERATION 



If additional proof were necessary that the Colonies became 
severally independent States by the Declaration of Independ- 
ence, the history of the subsequent Confederation, its pro- 
visions, and the form and terms of its ratification show that 
they entered it as such ; and therefore that, unless by some pro- 
ceeding undiscovered by history, they had acquired their 
several independence between the Declaration and the Con- 
federacy, they must have done so by the former act. 7 

Congress resolved, June n, 1776, that a committee should 
be appointed to prepare the form of a confederation to be 
entered into between the Colonies ; it was determined that the 
committee should consist of a member from each colony. 
Upon the report of the Committee, the subject was debated 
until November 15, 1777, when a form was agreed upon. 
Congress directed that these articles should be proposed to the 
legislatures of all the United States, and if by them approved, 
they were advised to authorize their delegates to ratify the 
same in the Congress of the United States ; which being done, 
they should become valid. On June 16, 1778, the form of 
ratification of the Articles was adopted, and was signed on 
July 9 in behalf of their respective States by the delegates of 
New Hampshire, Massachusetts Bay, Rhode Island, Connecti- 
cut, New York, Pennsylvania, Virginia, and South Carolina. 
The delegates of North Carolina signed on the 21st of July, 
those of Georgia on the 24th, and those of New Jersey on 
November 26th. May 5, 1779, Delaware completed her sig- 
natures. Maryland did not ratify until 1781. 

The manner of this establishment in itself necessarily im- 
plies the voluntary action of sovereign and independent com- 
munities. The language used alike by Congress, the States, 

36 



THE CONFEDERATION 37 

and in the Articles, establishes the same conclusion. The cir- 
cular letter sent by Congress to the various States in company 
with the proposed Articles reads : 

"Congress having agreed upon a plan of confederacy for 
securing the freedom, sovereignty and independence of the 
United States, authentic copies are now transmitted for the 
consideration of the respective legislatures. . . . Permit us 
then earnestly to recommend these articles to the immediate 
and dispassionate attention of the legislatures of the respective 
states. Let them be candidly reviewed under a sense of the 
difficulty of combining in one general system the various senti- 
ments and interests of a continent divided into so many sov- 
ereign and independent communities," etc. 

The form of the Confederation runs as follows : viz.: 

"Articles of Confederation and Perpetual Union between 
the States of Newhampshire [the others named]. Article I. 
The stile of this Confederacy shall be The United States of 
America.' Article II. Each State retains its sovereignty, 
freedom and independence, and every power, jurisdiction and 
right, which is not by this confederation expressly delegated 
to the United States in Congress assembled." 8 

Equally what the Articles provide for and wherein they 
restrict the several States display the prior autonomy and 
independence of those States. They "enter into a firm league 
of friendship with each other for their common defence." 
They grant to the free inhabitants of each State the freedom 
of the other States. Finally Article XII provides : 

"Every State shall abide by the determinations of the 
United States in Congress assembled, on all questions which 
by this confederation are submitted to them. And the articles 
of this confederation shall be inviolably observed by every 
State, and the Union shall be perpetual ; 9 nor shall any altera- 
tion at any time hereafter be made in any of them ; unless such 
alteration be agreed to in a Congress of the United States, and 
be afterwards confirmed by the Legislatures of every State. 

"And, whereas it has pleased the Great Governor of the 



38 SECESSION AND CONSTITUTIONAL LIBERTY 

world to incline the hearts of the Legislatures we respectively 
represent in Congress to approve of, and to authorize us to 
ratify the said articles of confederation and perpetual union, 
Know ye that we the undersigned delegates, by virtue of the 
power and authority to us given for that purpose, do by these 
presents, in the name and in behalf of our respective constitu- 
ents, fully and entirely ratify and confirm each and every of 
the said articles of confederation and perpetual union, and all 
and singular the matters and things therein contained : and we 
do further solemnly plight and engage the faith of our re- 
spective constituents, that they shall abide by the determina- 
tions of the United States in Congress assembled, on all ques- 
tions, which by the said confederation are submitted to them. 
And that the articles thereof shall be inviolably observed by 
the States we respectively represent, and that the Union shall 
be perpetual . . . On the part and behalf of the State of 
New Hampshire, John Bartlett," etc. [Other States signed 
in similar manner. ] 

Do these gentlemen mean nothing by stating that the author- 
ity for their act is "the Legislatures we respectively repre- 
sent," that they "plight the faith of our respective constitu- 
ents," that "the articles shall be inviolably observed by the 
States we respectively represent?" And is each delegation 
indeed, in spite of this language, acting for a hodgepodge of 
all the States in one ? 

The argument of those who would claim that the States 
became united as one State or Nation by the Declaration, or 
Confederation, must be either false, or, if true, is a proof that 
those States viewed "secession" as a natural concomitant of 
such an organization. Either they entered the Confederation 
as "sovereign and independent States" ; or, if they regarded 
themselves as parts of a unified government, then they dis- 
solved it, in spite of its having been made "perpetual," by a 
partial and peaceful act; the agreement of nine only, of thir- 
teen States, being necessary to the validity of the new agree- 
ment ; and no provision whatever being made against adverse 
action by the remaining four. Two of these, Rhode Island 



THE CONFEDERATION 39 

and North Carolina, did not become parties to the new govern- 
ment for two years after its formation. During that time 
these were not a part of the old Confederation, which was non- 
existent; they were not a part of the new United States. If 
they were not "sovereign and independent states" in the fullest 
sense, what constitutes such sovereignty? 10 Yet these two 
commonwealths had no other claims to sovereignty than those 
that existed in their sister States; therefore, if these two were 
sovereign, so were the others. Some citations may serve to 
show that the States conducted themselves during the Con- 
federation as sovereign communities. 11 

The process of adoption, briefly described by Marshall as 
follows, is verified by the various ratifications of the States : 

"Various amendments, in some instances contradictory to 
each other, were proposed by the states respectively, but they 
successively yielded to the opinion that a federal compact 
would be of vast importance in the prosecution of the 
war/' 12 * 

"... Now it is most strange that when we compare these 
proceedings with those which commenced in the colonies, in 
1774, from the first assembling of congress till they made 
'a declaration' of rights and wrongs, and entered into 'an 
association/ preparatory to a revolution; and from that time 
to July, 1776, when the revolution being effected, and the col- 
onies had in fact become states, and made 'the unanimous 
declaration of the thirteen United States of America/ an- 
nouncing that fact to the world; that both declarations pat- 
terned from the declaration of 1688, throughout, and in many 
parts copied, should be taken to be the declarations of one 
people, in a congress, representing one nation, instituting a 
national government thereof; and not as thirteen colonies or 
states una anima, declaring each to be a free and independent 
state, when the name of each was affixed, signed by their 
separate agents, calling themselves their representatives. It 
is equally strange, when in 1781, the same states by 'articles 
of confederation and perpetual union' between them, naming 

* Marshall's "Washington," Vol. IV, p. 473- 



40 SECESSION AND CONSTITUTIONAL LIBERTY 

each, entered into a confederacy or league of alliance, the style 
of which was 'the United States of America,' the second article 
whereof declared, 'each state retains its freedom, sovereignty 
and independence, and every power, jurisdiction and right 
which is not by this confederation expressly delegated to the 
United States in congress assembled' ; and by the third article, 
'the said states hereby severally enter into a firm league of 
friendship with each other,' etc. ; that there then existed an 
unity of political power, in the people and government of one 
state or nation, compounding the people, and power of all the 
states, into one, from 1776; so that no particular state had 
any power, right, or jurisdiction to retain to itself, or delegate 
to the United States, It is stranger still that it should be as- 
serted, that congress acted as the representatives of one people, 
state or nation ; when it is an admitted fact, that the first rule 
adopted by the congress of 1774, was, 'Resolved, That, in 
determining questions in this congress, each colony or province 
shall have one vote.' 1 Jonrn. 11. So it continued till the con- 
federation which declared, 'each state shall have one vote'; 
1 Laws U. S. 14; and so it remained till the old congress was 
dissolved, in 1788, by the adoption of the constitution by nine 
states, each having one vote in a convention of the people 
thereof. 

"If there can be a political truth, it would seem to be this, 
that where, in a body composed of sixty-five members, there 
could be only thirteen votes, if all the states were present, and 
there must be one vote less for each state that was absent; 
that the body did not, and could not represent, and act for all 
the states and the whole people, as a national legislature, 'serv- 
ing for the whole realm,' nation or state. They were a mere 
congress of states, colonies, or provinces ; the legislature of 
each of which was the separate constituent of its own deputies, 
or 'ambassadors,' who gave the vote of their 'sovereign,' and 
not their own ; and, therefore, could by no political possibility, 
be a legislature in any political sense, as the representatives of 
a people in their aggregate collective capacity." 13 * 

* Henry Baldwin, "View of the Constitution," pp. 59-60 ; Philadelphia, 
1837.. 



THE CONFEDERATION 41 

The states then became severally independent and sovereign 
by the Declaration of Independence ; in such a capacity entered 
upon a Confederation, and so remained until the Constitution 
of 1788. The question then becomes : 

In what manner and degree was this relation affected by 
that instrument? 



CHAPTER IV 

THE CONSTITUTION A COMPACT BY SOVEREIGN STATES 

Passing from the Confederation to the Constitution, the 
history of the movement toward this modification of their 
existing confederacy shows not less unmistakably than their 
foregoing history the action of sovereign States. 

"At length two great parties were formed in every state 
. . . The one ... in favor of enlarging the powers of 
the federal government . . . The other . . . were . . . 
led . . . to resist every attempt to transfer from their own 
hands into those of Congress, powers which by others were 
deemed essential to the preservation of the union. In many 
of the states, the party last mentioned constituted a decided 
majority of the people; in all of them it was very powerful 
. . . men . , . . who were persuaded of the insecurity of 
both, if resting for their preservation on the concurrence of 
thirteen distinct sovereignties; arranged themselves generally 
in the first party," etc.* 

The Convention which framed the Constitution took its rise, 
as alluded to in Washington's letter to Lafayette, May 10, 
1788,1 from a conference of certain commissioners appointed 
by the States of Virginia and Maryland "to form a compact 
relative to the navigation of the rivers Potomac and Poco- 
moke, and of part of the bay of Chesapeak, by the citizens of 
Virginia and Maryland . . . who assembled at Alexandria 
in March, 1785." While at Mount Vernon on a visit of con- 
sultation with Washington, they agreed to propose to their 
respective governments the appointment of other commis- 
sioners with power to make conjoint arrangements, to which 

* Marshall's "Life of Washington." 
tv. Appendix 5. 

42 



THE CONSTITUTION A COMPACT 43 

the assent of Congress was to be solicited, for maintaining a 
naval force in the Chesapeake. The commissioners were also 
to be empowered to establish a tariff of duties on imports to 
which the laws of both States should conform. When these 
propositions received the assent of the legislature of Virginia, 
an additional resolution was passed, directing that which re- 
spected the duties on imports to be communicated to all the 
States of the union, who were invited to send deputies to the 
meeting. 

On the 2 1st of January, 1786, a few days after the passage 
of these resolutions, another was adopted appointing certain 
commissioners, "Who were to meet such as might be appointed 
by the other states in the union, at a time and place to be 
agreed on, to take into consideration the trade of the United 
States," etc., etc. 

The meeting which took place at Annapolis, in pursuance of 
these resolutions, was attended by the commissioners from 
five States only. 14 It was perceived that powers more ample 
than had been confided to them would be requisite to enable 
them to effect the purposes which they contemplated. 

"For this reason, as well as in consideration of the small 
number of states which were represented, the convention de- 
termined to rise without coming to any specific resolutions on 
the particular subject which had been confided to them. 
Previous to their adjournment, however, they agreed on a 
report to be made to their respective states, in which was 
represented the necessity of extending the revision of the fed- 
eral system to all its defects, and in which they recommended 
that deputies for that purpose be appointed by the several 
legislatures to meet in the city of Philadelphia, on the second 
day of the ensuing May . . . On receiving this report, the 
legislature of Virginia passed an act for the appointment of 
deputies to meet such as might be appointed by other states; 
to assemble in convention at Philadelphia, at the time and for 
the purpose specified in the recommendation, from the con- 
vention which had met at Annapolis." * 

* Marshall, ''Life of Washington." 



44 SECESSION AND CONSTITUTIONAL LIBERTY 

The preliminary steps to the Constitution were thus made 
by purely State action. 15 

So much was this the case that, according to Marshall : 

"Congress was restrained from giving its sanction to the 
proposed convention, only by an apprehension that their taking 
an interest in the matter would impede rather than promote it. 
From this embarrassment the members of that body were re- 
lieved by the legislature of New York. A vote of that state 
. . . instructed its delegates to move in Congress a resolu- 
tion recommending the several states to appoint deputies to 
meet in convention for the purpose of revising and proposing 
amendments to the federal constitution." * 

On the 2 ist of February, 1787, the day succeeding the read- 
ing of the instructions given by New York, it was resolved by 
Congress : 

"Whereas there is provision in the Articles of Confedera- 
tion and perpetual union for making alterations therein by the 
assent of a Congress of the United States and of the legis- 
latures of the several states; And whereas . .' . several 
of the States and particularly the State of New York 
by express instruction to their delegates in Congress have sug- 
gested a convention for the purpose expressed in the following 
resolution . . . 

"Resolved that in the opinion of Congress it is expedient 
that on the second Monday in May next a Convention of dele- 
gates who shall have been appointed by the several states be 
held at Philadelphia for the sole and express purpose of revis- 
ing the Articles of Confederation and reporting to Congress 
and the several legislatures such alterations and provisions 
therein as shall when agreed to in Congress and confirmed by 
the states render the federal constitution adequate to the exig- 
encies of Government and the preservation of the Union." 

It is to be noted in this Resolution that the delegates are to 
be appointed by the several States — not the people of the 

*"Life of Washington," Vol. V, Chap. II. 



THE CONSTITUTION A COMPACT 45 

states as one body; and that the revision is to become valid 
when confirmed by the several States — not by the people at 
large. Also that "the preservation of the Union" is the object 
aimed at: which points to a potential — and, indeed, an ex- 
pected — resolution of it into its component members. 

The States of New Jersey, South Carolina, and Georgia date 
their credentials to their delegates in the Federal Convention, 
which was the outcome of this action : 

"In the year of our Lord 1786, and of our sovereignty 
and independence the eleventh." 

Are they speaking of the "sovereignty and independence" 
of the "United States" as a whole, in those instruments by 
which they are severally taking action to revise, alter, enlarge, 
or altogether withdraw (as did in fact North Carolina and 
Rhode Island) the powers of the federal government? Such 
an idea is a reductio ad abstirdum. To use the words of 
Governor Randolph (speaking to another point) "... then 
you establish another doctrine that the creature can destroy 
the creator, which is the most absurd and ridiculous of all 
doctrines." 

The credentials of Georgia begin : "The State of Georgia 
by the grace of God, free Sovereign and Independent." The 
credentials of Delaware begin : "In the Eleventh Year of the 
Independence of the Delaware State." The credentials of 
New York close : "In Testimony whereof I have caused the 
Privy Seal of the said State to be hereunto affixed the Ninth 
day of May in the Eleventh Year of the Independence of the 
said State" ; those of North Carolina : "Witness Richard 
Caswell, our Governor ... in the XI year of our Inde- 
pendence." The two "ours" must evidently connote objects 
both referring to the State. 

Some of the States dated their ratifications in the eleventh 
year of American independence, some in the eleventh year of 
the Independence of the United States, some in the eleventh 
year of the independence of their own State, and some, in the 
same instrument, used the last form in one place and one of 



46 SECESSION AND CONSTITUTIONAL LIBERTY 

the others in another; clearly showing that -the one was re- 
garded as the equivalent of the other. 
The Journals of the Convention begin : 

"On Monday the 14th of May ... in virtue of appoint- 
ments from their respective States sundry deputies to the 
federal Convention appeared. But a majority of the states 
not being represented, the members present adjourned from 
day to day until the other states were represented." 

The letter from the Convention to Congress, accompanying 
its completed plan, is thus commented upon by Judge Baldwin : 

"This difficulty did not cease by the unanimous act pro- 
posed by the general convention. In their letter submitting it 
to congress, we find them stating the same reasons which em- 
barrassed their action, and long delayed its ratification by the 
states, 'It is obviously impracticable in the federal govern- 
ment of these states, to secure all rights of independent sov- 
ereignty to each, and yet provide for the interest and safety of 
all/ It is at all times difficult to draw with precision the line 
between those rights which must be surrendered, and those 
which may be reserved.' . . . 

"There can be no misunderstanding of the meaning of this 
letter, that the convention had proposed the frame of a 'fed- 
eral government of these states,' to be created by a surrender 
of the necessary powers by the several states, to be made by 
the people in separate conventions . . . " * 

The signature of the instrument declares the mode of its 
formation. 

"He [B. Franklin] then moved that the Constitution be 
signed by the members, and offered the following as a con- 
venient form, viz.: 'Done in convention, by the unanimous 
consent of the states present.' " f 

* Henry Baldwin, "View of the Constitution," p. 66 ; Philadelphia, 

1837. 

t Journals of Congress. 



THE CONSTITUTION A COMPACT 47 

The correspondence of the delegates shows their under- 
standing of the nature of the powers which created the 
government. 16 

In the Federal Convention itself, as in the various ratifying 
conventions, the sovereignty of the States represented in it was 
repeatedly asserted, and never effectively (if even formally) 
denied. Upon the resolution "that the rights of suffrage in 
the national legislature ought to be apportioned to the quotas 
of contribution, or to the number of inhabitants, as the one or 
other rule may seem best in different cases, " Judge Brearly, of 
New Jersey, objected that 

"The present question is an important one. On the prin- 
ciple that each state in the Union was sovereign, Congress, in 
the Articles of Confederation, determined that each state in 
the public councils had one vote. If the states still remain 
sovereign, the form of the present resolve is founded on prin- 
ciples of injustice." 

Mr. Patterson, of New Jersey, said : 

"We are met here as the deputies of thirteen independent 
sovereign states," etc. 

Mr. Bedford, of Delaware (carrying out the instructions of 
his State), 17 said: 

"That all the states at present are equally sovereign and in- 
dependent, has been asserted from every quarter of this house. 
Our deliberations here are a proof of the fact ; and I may add 
to it, that each of them acts from interested, and many from 
ambitious, motives . . . Will you crush the smaller states, or 
must they be left unmolested? Sooner than be ruined there 
are foreign powers who will take us by the hand." 

Mr. Bedford's threat was deprecated by various members, 
but none undertook to controvert his statement. 

To the like effect in more guarded language, Judge Ells- 
worth, of Connecticut, moved the compromise which saved 
the situation: 



48 SECESSION AND CONSTITUTIONAL LIBERTY 

"I now move the following amendment to the resolve — 
that, in the second branch, each state have an equal vote . . . 
This will . . . meet the objections of the larger states 
. . . If the great states refuse this plan, we will be forever 
separated." 

Governor Randolph, urging ratification, in - the Virginia 
Ratifying Convention, said : 

"What is the present situation of this state? She has pos- 
session of all rights of sovereignty, except those given to the 
Con federation. " 

Sherman and Ellsworth, in their letter transmitting the 
proposed Constitution to the Governor of Connecticut, Sep- 
tember 26, 1787, say: 

"Some additional powers are vested in Congress, which was 
a principal object that the states had in view in appointing the 
Convention. Those powers extend only to matters respecting 
the common interests of the Union, and are specially defined, 
so that the particular states retain their sovereignty in all 
other matters . . ." Ellsworth, defending the Constitution 
in the Ratifying Convention of Connecticut, says : "This 
Constitution does not attempt to coerce sovereign bodies, 
states, in their political capacities. " 

Fisher Ames, of Massachusetts, said: 

"The senators represent the sovereignty of the states." 

Randolph, in his letter to the Speaker of the House of Dele- 
gates of Virginia, explaining his advocacy of the Constitution, 

says : 

"I earnestly pray that the recollection of common sufferings, 
which terminated in common glory, may check the sallies of 
violence and perpetuate mutual friendship between the states. 
But I cannot presume that . . . through all time . . . 
thirteen distinct communities, under no effective superintend- 



THE CONSTITUTION A COMPACT 49 

ing control (as the United States confessedly now are . . . ) 
will avoid a hatred to each other . . ." 

Mr. Randolph, in premising the Virginia proposals, which 
much altered became the basis of the Constitution, animadvert- 
ing upon the defects of the Confederation which it was in- 
tended to rectify, said that, 

"Perhaps nothing better could be obtained from the jealousy 
of the states with regard to their sovereignty." 

Enumerating these defects, he said : 

"... Secondly, that the federal government could not 
check the quarrels between states, nor a rebellion in any, not 
having constitutional power nor means. . . . Fourthly, that 
the federal government could not defend itself against en- 
croachments from the states. Fifthly, that it was not even 
paramount to the State constitutions, ratified as it was in many 
of the states. ..." 

The Journal of the Convention, May 29, records that : 

"Mr. Charles Pinckney . . . laid before the house . . . 
the draft of a federal government, to be agreed upon between 
the free and independent states of America." 

Finally the Constitution was given its only validity over 
the people of the several States, as their ratifications plainly 
and unmistakably express, by conventions held severally by the 
several people of the States ; e. g. 

"We, the delegates of the people of Virginia, duly elected in 
pursuance of a recommendation from the General Assembly, 
and now met in Convention ... in the name and behalf of 
the people of Virginia do, by these presents, assent to and 
ratify the Constitution . . . hereby announcing that the said 
Constitution is binding upon the said people ..." 

The published proceedings of various branches of govern- 
ment after the Constitution had been put into operation recog- 
nize the manner of its creation; e. g. the title page of the 
1—4 



50 SECESSION AND CONSTITUTIONAL LIBERTY 

"Journal of the third session of the Senate of the United 
States of America, begun . . . Dec. 6, 1790, and in the 
fifteenth year of the sovereignty of the United States." The 
sub-title runs : "Journal of the third session of the Senate of 
the United States to wit : New Hampshire' ' [here follow the 
other States] being the thirteen States that have respectively 
ratified the Constitution of Government for the United States, 
proposed by the Convention," etc. 

The sovereignty and independence of the States instituting 
the Constitution being proven, what can such an agreement be 
but a compact? 

"Let whatever meaning be given to the constitution; 
whether a league, confederation, agreement, compact or treaty, 
'between the states so ratifying,' as it expresses itself in the 
seventh article ; its substance, essence, and nature, is a contract 
between states or nations." * 

Mr. Upshur ("Review of Story") says: 

"That a deed, or other instrument, receives its distinctive 
character, not from the name which the parties may choose to 
give it, but from its legal effect and operation." 18 

This compact, however, not only is such from its nature, 
its legal effect, and operation, but it was so named by the 
parties thereto, 

Mr. James Wilson, who sought to transfer his theory of a 
single state created by the Declaration to that of one created 
by the Confederation, and later again to that of one created by 
the Constitution, speaking in the Ratifying Convention of 
Pennsylvania, says: 

"We were told some days ago, by the honorable gentleman 
from Westmoreland, when speaking of this system and its 
objects, that the convention, no doubt, thought they were 
forming a compact or contract of the greatest importance. 
Sir, I confess I was much surprised at so late a stage of the 

* Henry Baldwin, "View of the Constitution." Phila., 1837. 



THE CONSTITUTION A COMPACT 51 

debate, to hear such principles maintained. It was a matter of 
surprise to see the great leading principles of the system still 
so very much misunderstood. 'The Convention, no doubt, 
thought they were forming a contract.' I cannot answer for 
what every member thought; but I believe it cannot be said 
that they thought they were forming a contract, because I 
cannot discover the least trace of a compact in that system. 
There can be no compact unless there are more parties than 
one. It is a new doctrine that one can make a compact with 
himself. 'The convention were forming compacts,' With 
whom? I know no bargains that were made there. I am 
unable to conceive who the parties could be. The state govern- 
ments make a bargain with one another! that is the doctrine 
that is endeavoured to be established by gentlemen in opposi- 
tion, their state sovereignties wish to be represented ! But far 
other were the ideas of the convention, and far other those 
conveyed in the system itself. 

"This, Mr. President, is not a government founded upon 
compact; it is founded upon the power of the people. They 
express in their name and their authority, 'We the People do 
ordain and establish/ etc. From their ratification, and their 
ratification alone, it is to take its constitutional authenticity; 
without that, it is no more than tabula rasa . . . The secret 
is now declared, and it is discovered to be a dread that the 
boasted state sovereignties will under this system be disrobed 
of a part of their power . . . upon what principle is it con- 
tended that the sovereign power resides in the state govern- 
ments? The honourable gentleman has said truly that there 
can be no subordinate sovereignty. Now, if there cannot, my 
position is, that the sovereignty resides in the people, they 
have not parted with it . . ." 

According to Mr. Wilson's own language, in this same 
Convention, there were thirteen parties. 

"The difficulty of the business was equal to its magnitude. 
No small share of wisdom and address is requisite to combine 
and reconcile the jarring interests that prevail, or seem to 



52 SECESSION AND CONSTITUTIONAL LIBERTY 

prevail, in a single community. The United States contain 
already thirteen governments mutually independent. 3 ' * 

Again, in the Federal Convention, Mr. Wilson, speaking to 
the possible destruction of state by the Federal government, 
said: 

"In all Confederated systems, ancient and modern, the 
reverse had happened," etc. 

How could it be a "confederated system" without separate 
parties thereto ? Again, in the same convention, he said : 

"In considering and developing the nature and end of the 
system before us, it is necessary to mention another kind of 
liberty, which has not yet, as far as I know, received a name. 
I shall distinguish it by the appellation of federal liberty. 
When a single government is instituted, the individuals, of 
which it is composed, surrender to it a part of their natural 
independence, which they before enjoyed as men. When a 
confederate republic is instituted, the communities, of which it 
is composed, surrender to it a part of their political inde- 
pendence, which they before enjoyed as states . . . Since 
states as well as citizens are represented in the Constitution 
before us, and form the objects on which that constitution is 
proposed to operate, it was necessary to notice and define 
federal as well as civil liberty." 

In the Federal Convention, again, August 30, Mr. Wilson 
remembered the component parts of the Constitution. De- 
bating the question of the number of states whose consent 
might validate the proposed government, Mr. Madison 

"Remarked that if the blank should be filled with 'seven,' 
'eight/ or 'nine,' -the Constitution, as it stands, might be put in 
force over the whole body of the people, though less than a 
majority of them should ratify it. 

"Mr. Wilson. As the Constitution stands, the states only 

* Italics are author's. 



THE CONSTITUTION A COMPACT 53 

which ratify can be bound. We must, he said, in this case, go 
to the original powers of society." 

In the Pennsylvania Convention on November 24, not two 
weeks before Mr. Wilson was so surprised at the idea of a 
compact, he had taken credit to himself for having taken part 
in such. 

"To frame a government for a single city or State, is a busi- 
ness . . . widely different from the task entrusted to the 
Federal Convention, whose prospects were extended not only 
to thirteen independent and sovereign states . . . Can it 
then be a subject for surprise that ... we should . . . 
influenced by the spirit of conciliation resort to mutual con- 
cessions, as the only means to obtain the great end for which 
we are convened ... it is natural to presume that Provi- 
dence has designed us for an united people under one great 
political compact." 

Three paragraphs before Mr. Wilson expresses his surprise 
at the idea of a compact, and says : 

"I know of no bargains that were made there," he stated, 
"though the jarring interests of the various states, and the 
different habits and inclinations of their inhabitants, all lay in 
the way, and rendered our prospects gloomy and discouraging 
indeed, yet such were the generous and mutual sacrifices of- 
fered up," etc. 

Strange indeed that one and the same party could have "jar- 
ring interests" and "offer up mutual sacrifices!" How could 
the "jarring interests of the various states" be an obstacle un- 
less the various States (i. e., the people thereof) were the con- 
tracting parties? What were the "mutual sacrifices" except 
those "bargains" which Mr. Wilson "knew not of"? 

If there were no parties to' make a compact, what does Mr. 
Wilson mean when, in this same ratifying convention, he says: 

"The remaining system which the American states may 
adopt* is a union of them under one confederate republic 
* Italics are the author's. 



54 SECESSION AND CONSTITUTIONAL LIBERTY 

... If those opinions and wishes are as well founded as 
they have been general, the late convention were justified in 
proposing to their constituents one confederate republic as the 
best system for a national government for the United States" ? 

On November 28, in the Ratifying Convention, Mr. Wilson 
said : 

"When gentlemen assert that it was the intention of the fed- 
eral convention to destroy the sovereignty of the states, they 
must conceive themselves better qualified to judge of the inten- 
tion of that body than its own members of whom not one, I 
believe, entertained so improper an idea." 

On October 6, addressing a meeting of the citizens of Phil- 
adelphia, Mr. Wilson said : 

"Thus fettered I do not know of any act which the senate 
can of itself perform . . . But I will confess, that in the 
organization of this body, a compromise between contending 
interests is discernible; and when we reflect how various are 
the laws, commerce, habits, population and extent of the con- 
federated states, this evidence of mutual concession and ac- 
commodation ought rather to command a generous applause 
than to excite jealousy and reproach." 

In so far as regards the personal authority of Mr. Wilson, 
it must be evident that it is unnecessary to oppose it by any 
other authority than that of Mr. Wilson himself; yet if Mr. 
Wilson "could not discover the least trace of a compact in 
that system," 19 and "knew of no bargains which were made 
there," the other members of the Convention were by no 
means so ingenuously ignorant. 20 

Mr. Wilson says that "There can be no compact unless there 
are more parties than one. It is a new doctrine that one may 
make a compact with himself." One might answer: "There 
can be no Union unless there are more parties than one. It 
is a- new doctrine that one can form a union with himself." 
The title United States meant States united with one an- 



THE CONSTITUTION A COMPACT 55 

other (and, in the earlier times of the republic, was commonly 
used with plural pronouns and verbs 21 ) , in other words, for- 
mally as well as essentially, a compact. 

"Delegates were appointed to deliberate and to propose. 
They met, and performed their delegated trust. The result 
of their deliberations was laid before the people. It was dis- 
cussed and scrutinized in the fullest, freest and severest man- 
ner, — by speaking, by writing and by printing — by individuals 
and by public bodies, — by its friends and by its enemies. What 
was the issue ? Most favourable and most glorious to the sys- 
tem. In state after state, at time after time, it was ratified — 
in some states unanimously — on the whole, by a large and very 
respectable majority." * 

Says Mr. Wilson : 

"This, Mr. President, is not a government founded upon 
compact; it is founded upon the power of the people. They 
express in their name and their authority, 'We the People do 
ordain and establish,' etc. From their ratification, and their 
ratification alone, it is to take its constitutional authenticity, 
without that, it is no more than tabula rasa . . . The hon- 
ourable gentleman has said truly that there can be no subordi- 
nate sovereignty. Now, if there cannot, my position is, that 
the sovereignty resides in the people, they have not parted with 
it . . ." 

There is no contradiction involved in the statement that a 
government "founded upon the power of the people" is also 
"founded upon compact." The one in question is both. The 
whole theory of government in the United States is based upon 
the assumption that ultimate sovereignty resides in the people. 
If this is what Mr. Wilson meant to assert, it is undeniable : it 
is also foreign to his argument. Whether the people of the 
several States contracted severally or as a whole is not a ques- 
tion formally raised by his statement. 

There is, however, so little in any of the official instruments 
* James Wilson, Oration, 4th of July, 1788. Italics by B. S. 



56 SECESSION AND CONSTITUTIONAL LIBERTY 

which illustrate the Constitution, or in the history of its for- 
mation, to support the contention of Mr. Wilson's school, that 
practically it is based upon the expression with which the pre- 
amble to the Constitution begins, as quoted by Judge Wilson, 
viz.: "We, the people of the United States/' This, it is in- 
sisted, means the people of the United States as a whole, not 
severally; and doubtless this is the point intended to be made 
by Mr. Wilson. But even the verbal construction does not 
bear out this meaning. As has been shown, the term "United 
States" was, at that time, used as the equivalent of its several 
components, not, as more lately, as a unifying term. So also 
the word "people" (of the United States) was commonly used 
to indicate the people of the several States. 22 

The point has been made to bear an importance not inherent 
in it, since the effects, not the name, make the system : 

"After all, in discussing & expounding the character & im- 
port of a Constn., let candor decide whether it be not more 
reasonable & just, to interpret the name or title by the facts 
on the face of it, than to make the title torture the facts by 
a bed of Procrustes into a fitness to the title." * 

The facts on the face of this instrument not less clearly 
than the manner of ratification denote that "the people" were 
the people of the several United States. 

"If the preamble truly points to the majority of the whole 
people of the United States, in their aggregate collective capac- 
ity, as the original depository of this power; that power is 
competent for all purposes of consolidating, or distributing it, 
in one, or among many governments; but it necessarily ex- 
cludes federation between the several states. They must come 
into it as equals in power, who can acknowledge no federal 
head, except the^one created by the act of federation; no fed- 
eral legislation can be exercised, but by a legislature which rep- 
resents the constituent parts. If congress is the creation of the 
sovereign power of one state or nation, whose people have 
done the act in the unity of their political power, it is no fed- 

* Madison, Letter to John Tyler. 



THE CONSTITUTION A COMPACT 57 

eral government; there are no constituent parts by which to 
compose it. The residuary sovereignty of the several states 
of this Union and the people thereof, cannot be the same as 
the absolute sovereignty of the one nation and people thereof ; 
which by its own unaided power can institute a government 
over the whole thirteen states; the term absolute, admits no 
limitation as to power ; residuary, can mean only that residuum 
which the absolute power has not pleased to exercise. The use 
of the terms absolute, and residuary sovereignty, thus applied, 
either in argument or illustration, is, of necessity, with a view 
to make the constitution operate by its grants and restriction ; 
by an authority paramount to that of the people of the several 
states ; and thus bear essentially on its exposition. Hence, the 
preamble has ever been the field selected ... on which they 
maintain their proposition; if they abandon that field, the 
constitution gives them no other defensible position. The 
object can be no other than by the potency of the preamble, 
to control the provisions of the constitution; so as to give to 
the term, 'the people,' the same meaning and reference where- 
ever it is used. 

"The term is found only in three places ; in the preamble it 
is 'the people of the United States' ; in the second section, first 
article, it is 'the people of the several states' ; and in the tenth 
amendment 'the states respectively, or the people' ; in all it is 
connected with 'states' ; but the phraseology is different as to 
both terms. It then becomes all important to examine, whether 
'the people of the United States,' who established the consti- 
tution 'of the several states' ; who elect the 'representation 
from each state' ; and 'the states respectively or the people,' to 
whom all powers not granted or prohibited, are reserved; 
refer to the same or different bodies. 

"It cannot well be doubted, that if the general term in the 
preamble refers to the whole people in the aggregate, as 'the 
people of the United States' ; the still more general term in the 
tenth amendment must be taken in the same sense, 'the people' ; 
if they are so taken, then the intermediate term 'the people of 
the several states/ must receive the same interpretation, or 
there must be this consequence ; That the granting, restraining, 



58 SECESSION AND CONSTITUTIONAL LIBERTY 

and the reserved powers, were, and are in the 'one people/ 
and the power of organizing and administering the govern- 
ment, is in the 'several people of each state' ; of course there 
can be no reserved power in them, and it must remain in that 
body which could grant, restrain, except and reserve, accord- 
ing to the doctrine of this Court. . . . On the other hand, 
if the three terms mean the same thing, the one people,' the 
words, 'several states,' 'each state,' are made to mean the states 
in the aggregate; by which the words 'several' and 'each' will 
be virtually expunged from the body of the instrument; and 
the words, 'in the aggregate or collectively,' inserted by con- 
struction. No one, then, can fail to perceive, that by adding 
these words, or taking out, or neutralizing the words 'several' 
and 'each,' the whole constitution is made to speak in different 
language; and to express an intention wholly different from 
that which its words import, read as they are. I, therefore, 
wholly disclaim this mode of construing the constitution, by 
adding or altering a word; the tendency whereof is too well 
understood to be mistaken. It is to draw the attention from 
the body, the provisions, and the operations of the instrument, 
in the terms of which there is no ambiguity in defining the 
term people or states, and confine it to its caption or preamble, 
which in itself may admit of a reference to suit the object, if 
it is not compared with what is ordained and established in 
detail." * 

"All admit, that in fact, the constitution was established by 
the ratification of the people of the several states, in separate 
conventions or representatives, whom they elected in the re- 
spective counties : yet the preponderance of political and pro- 
fessional authority, is in favour of the proposition, that it was 
the act of the people in their collective capacity. When this 
shall become settled doctrine, it will be seen how much better 
the nature and science of government is now understood, 
than it . . . was understood by the congresses and conven- 
tions of these states from 1774 to 1787. . . . 

"The congress of the revolution, and the convention of 1787, 

* Henry Baldwin, "View of the Constitution," pp. 37-39; Philadelphia, 
1837. 



THE CONSTITUTION A COMPACT 59 

were ignorant of any other legislative power than that of the 
separate states. It is attributing to the members of Congress 
in 1777, the most utter and profound ignorance of the nature 
and powers of the government of the revolution, which they 
themselves administered for five years, if it was such an one 
as commentators now hold it to have been. In the letter 
recommending it to the states to adopt the articles of confed- 
eration, they say, 'Every motive calls upon us to hasten its 
conclusion;' 'it will add weight and respect to our councils at 
home, and to our treaties abroad.' 'In short this salutary 
measure can be no longer deferred. It seems essential to our 
very existence as a free people, and without it we may soon 
be constrained to bid adieu to independence, to liberty, and 
ta safety/ etc. . . . The remedy was far worse than the dis- 
ease, according to modern theory; but the practical states- 
men and jurists of the day, deemed it of vital importance to 
have a government in form, though utterly defective in sub- 
stance and execution. Bad as it was, it was better than none ; 
a line of duty was prescribed to the states; if they did not fol- 
low it, it was not because it was not plain; whereas, before, 
the only line was drawn by the States themselves, in their 
separate instructions to their delegates, or in acting on their 
recommendation. When too it is recollected, that congress 
asked for the delegation of the shadow of power by states, 
when, according to the commentary, they had the substance 
already by delegation from the people; the men of the revolu- 
tion were either ignorant in what a government consisted, or 
the expositors of their acts have made one which never existed 
but in their own fancy. 

"The same remarks will apply to the members of the con- 
vention of 1787, if we so take the words of the preamble of 
the proposed constitution, as to be a declaration that the politi- 
cal existence, and organic power of the several states and peo- 
ple, had become so amalgamated into one body of supreme 
power, as to make it the sole grantor of the powers of the 
federal government, and competent to restrict the states, and 
control existing state constitutions. Their letter to congress, 
and of the latter to the several state legislatures, asking sep- 



60 SECESSION AND CONSTITUTIONAL LIBERTY 

arate conventions of the people in each to ratify it; was an act 
indicating political fatuity, if the instrument contained, and 
was intended to be a declaration, that when ratified by such 
conventions of nine states, and thus established, it was not 'by 
the people of the several states/ but of all collectively. 

"It would also be an imputation of political treachery to 
the states, who were the constituents of the convention, to draw 
up a frame of government, which in all its provisions explicitly 
declared the separate existence and action of 'the people of the 
several states, and of each state,' in all the movements of the 
government, in all time, in language admitting of no twofold 
interpretation ; and then prefixing to it a declaration, by which 
the states, in their most sovereign capacity, in separate con- 
ventions of the people, are made to admit and acknowledge, 
that 'the absolute sovereignty' in matters of government, was 
not, and from July, 1776, had not been invested in the people 
of the separate states; and that they had, at the adoption of the 
constitution, only such 'residuary sovereignty,' as remained 
after a paramount power had made a supreme law over them. 
. . . It is not credible, that when the power of parliament 
to legislate for colonies who avowed allegiance to the King, 
was utterly denied, even under the British constitution, the 
authority of which was universally admitted; the free and 
independent states, who had eleven years before renounced 
their allegiance to the crown, and abolished their old constitu- 
tion, would have adopted a new one which left them less 
free in legislation, than they were in their colonial condition. 
. . . Parliament never asserted by the plenitude of its omnip- 
otence, such powers of legislation over the colonies, or at- 
tempted to impose such restrictions on colonial or provincial 
legislatures, as are exerted by the constitution; and if it is a 
supreme law, overriding state constitutions, by any other au- 
thority than that of the people of each, without and against 
their consent, it is one more sovereign over them than that 
which they threw off by the revolution. Every principle by 
which it was conducted, every object sought to be attained, 
was reversed and frustrated; if, in 1787, the states were not 
in that 'separate and equal station among the powers of the 



THE CONSTITUTION A COMPACT 61 

earth/ which they assumed in 1776, and did not then retain 
all powers which they had not expressly delegated to the con- 
gress in 1 78 1. Every state constitution asserted palpable false- 
hoods; and the people thereof exerted usurped powers, if the 
sole right of instituting any government over them was not 
in themselves alone. And thus, every solemn act, and written 
document of the congress, and the states, for thirteen years, 
will become utterly falsified ; if the 'power, right, and jurisdic- 
tion' of the federal government, and the authority of the con- 
stitution is not by grant from each state, of what all had so 
often declared to be inherent in the people thereof, by original 
right, and which it had hitherto retained. If these powers 
were in the whole people of the United States, as one 'single 
sovereign power,' from 1774 till 1787, that power still exists 
in its original plenitude; and the judges of this, and all state 
courts, are bound to obey and expound it as the grant of that 
power, speaking in its words, and expressing thereby its inten- 
tion, as the grantor in whom there was full and absolute right 
to do whatever it has ordained. 

"If the constitution was only a grant of power, it would 
be of little importance to inquire whether it was to be consid- 
ered as made by the one, or the separate people of the states 
who adopted it; for its obligations on those states would be 
unquestioned. But the importance of the question arises on 
the restrictions and amendments; whether a state restricts 
itself, or is restricted by an external power; whether the reser- 
vations are to the people collectively, or the people of each 
state. And it must be remembered, that the terms of reser- 
vation in the 10th amendment, make no change in the consti- 
tution, in virtue of the amending power of the fifth article; 
it is a declaration by the grantor, of the meaning and effect 
of the grant and prohibition which none but the granting 
power was competent to make. Hence, it is necessary that 
there should be: first, a competent power to grant the thing 
granted ; and next, the grantor must have competent power to 
prohibit and restrain states and state laws ; to make exceptions 
to the grants and restrictions, and to reserve to itself all other 
powers not exercised by the grant: and as B can make no 



62 SECESSION AND CONSTITUTIONAL LIBERTY 

exception or reservation out of a grant made by A, all these 
powers must be original in the one who was competent to make 
the grant. If it is in A, the grant throughout being his act, 
is easily construed as one deed, with its various clauses ; which, 
when referred to one person, whose intention it expresses, is 
taken as a simple, plain writing, the one part whereof explains 
the other, by reference and established rules. But if the grant 
is taken to be the act of A, in granting certain things to C, 
restraining a previous or subsequent grant by B to D ; declar- 
ing what B or D may or may not do ; and there is attached to 
the grant a proviso or defeasance by B, that what is not 
granted to C, or prohibited to B & D, shall be reserved to 
B or D, the whole is unintelligible. The exceptions and reser- 
vations being of original right and title, which is vested in 
A, are void and inoperative, if not made by A himself; they 
remain in him, and cannot pass to B or D without direct 
grant; of consequence, the grant becomes disencumbered of 
any exception or reservation; and must be taken, by all the 
rules of law, as if it contained none in terms. Taking, then, 
the constitution as the grant of the one people to congress, 
imposing restrictions on the states acting in the legislature 
thereof, and the people acting in convention; and the tenth 
amendment operating as a proviso or defeasance on every part 
thereof, not as an actual or intended alteration of any of its 
provisions ; it must follow : That as it was made by a power 
subordinate to that which ordained the constitution, it was 
incompetent to except or reserve anything out of, or from it, 
to the people of the several states, if they are not the grantor; 
or to the states, respectively, if each was not a grantor. Not 
being parties to the grant, they are strangers to it ; and no prin- 
ciple of law is better settled, than that an exception or reser- 
vation to a stranger, is void; it must be to the lessor, donor, 
or feoffor, and his heirs, who are privy in blood . . . It is 
then a necessary consequence of these rules, that the people of 
the several states, have now no reserved powers, or that they 
are the granting power of the constitution . . . Another 
rule results from the preceding ones, which this Court lays 
down as one 'to which all assent/ that an exception to any 



THE CONSTITUTION A COMPACT 63 

power proves, that in the opinion of the lawgiver, the power 
was in existence had there been no exception . . ."* 

"Thus far the constitution delineates the action of the peo- 
ple, the states, or state legislatures, and the electors, in organ- 
izing the legislative and executive departments of the govern- 
ment, which enables it to execute all its functions and powers ; 
it remains only to be seen, how, and by what power, this 
organization of government, the distribution and administra- 
tion of its powers, was authorized and directed. 

" 'Art. 7. The ratification of the conventions of nine states 
shall be sufficient for the establishment of this constitution, 
between the states so ratifying the same/ 

"It is then, by the separate action of the states, in conven- 
tions of nine states (not in a convention of nine states), that 
the grant was made ; the act of eight produced no result ; but 
when the ninth acted, the great work was effected as between 
the nine. Until the other four so acted, they were no part of 
the United States; nor were the people of the non-ratifying 
states, any part of the people of the United States, who or- 
dained and established it. 

"That the term, conventions of states, meant conventions of 
delegates, elected by the people of the several states, for the 
express purpose of assenting or dissenting, to their adoption 
of the proposed constitution, is admitted by all; as also, that 
no general convention of the whole people was ever convened 
for any purpose; and that the members of the convention 
which framed it, met, and acted as states, consented to, and 
signed it for and in behalf of the states, whom they respec- 
tively represented, appears on its face. It was proposed to 
the people of each state separately, and was so ratified; it 
existed only between those states whose people had so accepted 
it. It would, therefore, most strangely contradict itself, 
throughout all its provisions, to so construe the preamble, as 
to make it a declaration, that it was ordained by any other 
power than that of the people of the several states, as distinct 
bodies politic, over whom no external power could be exerted, 
but by their own consent. 

* Hy. Baldwin, "View of the Constitution," pp. 61-65; Philadelphia, 1837. 



64 SECESSION AND CONSTITUTIONAL LIBERTY 

"These are not only the necessary conclusions, which flow 
from the plain language and definite provisions of the con- 
stitution itself, but their settled interpretation by this Court. 
'From these conventions the constitution derives its whole 
authority. The government proceeds directly from the people, 
and is ordained and established in the name of the people.' 
4. Wh. 403. 

"If it is asked what people; the answer is at hand, 'A con- 
vention of delegates chosen in each state, by the people thereof, 
assembled in their several states/ " * 

"There never has been, or can be, any difference of opinion 
as to the meaning of the ordaining parts of the constitution in 
the terms, 'the people of the several states ; ( the several states 
which may be included in this union 3 ; 'each state' ; for they do 
not admit of two meanings. They refer to those states which, 
having ratified the constitution, are each a constituent part of 
the United States, composing, by their union, The United 
States of America; and to the people of each state, as the 
people of the United States. When terms are so definite in 
the body of an instrument, and one less definite is used in the 
preamble, which can be made equally definite by reference, 
the established maxim applies — 'id certum est quod certum 
reddi potest. 3 Let then the term, We, the people of the United 
States, be referred to the second section of the first article, 
and compared with the terms, 'the people of the several states' ; 
'the several states which may be included within this union ; 
the sense of bothris identical. So, when we refer the terms 
to the seventh article, prescribing the manner of ordaining 
and establishing the constitution, there is the same identity 
of meaning. No other variance exists between the terms in 
the preamble and body, than exists in other terms which are 
varied in form, but are the same in substance, and used in the 
same intention; as 'each state' ; 'the several states' ; the several 
states 'which may be included within this union; the United 
States; the United States of America; a congress of the United 
States; the congress; congress/ &c. When the various parts 
of an instrument can be made to harmonize, by referring the 

* Baldwin, "View of the Constitution," p. 35; Philadelphia, 1837. 



THE CONSTITUTION A COMPACT 65 

supposed doubtful words of one part to the certain words of 
another, without doing violence to their appropriate sense; 
every just rule of construction calls for such reference as will 
remove ambiguity : if the two terms cannot be reconciled, it is 
a settled rule, that the preamble is controlled by the enacting 
part. No case can arise to which these rules can be more ap- 
plicable, and there is no discrepancy between the different 
terms; one is less full and explicit than the others, the name 
given to the granting power is not its substance; the thing is 
the power; whenever that is clearly defined, the name will be 
made to suit it. If this term in the preamble was, by com- 
mon consent, or the settled course of professional and judicial 
opinion, taken as a mere name given to a thing of an agreed 
determinate nature, it would be a waste of time to inquire 
whether the name was appropriate to the thing; or whether 
the reasoning, which makes the action of thirteen distinct 
bodies, at so many different times and places, produce the same 
result, as the action of one on the same object, and may be 
deemed in legal contemplation, the sole action of one body, 
was metaphysical or sound; for it would be merely a discus- 
sion on words, which would not determine the sense of the 
constitution as to substance and things. That the states acted 
in the same distinct and separate capacity, in the creation of 
the government, as they did, and yet do in selecting their 
agents who administer its powers, is apparent in the seventh 
article, before quoted. 

"The mode of action was by the people of each state, in 
conventions of delegates chosen by themselves; the action 
of the separate conventions being, by their express authority, 
delegated for the special purpose, was the action of the peo- 
ple. The grant was theirs, of their powers; and thus made 
it was in perfect harmony with all the provisions in its body, 
and as declared in its front ; that, 'We, the people of the United 
States, do ordain and establish this Constitution for the 
United States of America/ The meaning is clear and plain, 
by a reference to the people of each of those States who rati- 
fied it in convention, and to the people of the several states 

who were to elect the representatives of the state, in a con- 
1—5 



66 SECESSION AND CONSTITUTIONAL LIBERTY 

gress of the United States; the same people performing dif- 
ferent functions, the first in creating, the second in organizing 
the government of the States, which had been thus established 
between themselves. 

"In so taking the declaratory part of the instrument, it har- 
monizes throughout; no violence is done, or a strained con- 
struction put to any part; every word has its own meaning, 
when it is referred to its subject matter of application; power 
flows from its original and acknowledged fountains, and is dis- 
tributed by each depository, among the appropriate agents for 
its execution. It is the same power which had been exerted 
in the institution of a government for each state; was com- 
petent to do so for the states, which had been united by 
an alliance of mere confederation, without any legislative 
power in their congress; by making any change which an 
organic power, absolute and unlimited, could effect, and which 
this Court has often declared it did effect in its exertion by sep- 
arate bodies. If it was so taken as settled doctrine, it would 
be easy to expound the instrument in which this power was 
exerted, as a charter or grant, ex visceribus suis, the law at 
the time it was made, the common, the statute, and consti- 
tutional law of England, the history and state of the times 
then and before, the acts of the people, the states, and of 
congress, in their domestic and foreign relations, in some of 
which sources there would be found satisfactory means of 
its interpretation. * . . The preamble declares, that 'We, the 
people of the United States, etc., do ordain and establish this 
constitution for the United States of America/ That it was 
done by the power of the people, and not of the state legisla- 
tures is universally admitted; as also that they had the com- 
petent power to do it. The only question which is open is, 
whether this power was in the people of the separate states, 
as separate bodies politic, or in the whole people of the United 
States, as one. 

"This Court, as the appropriate tribunal for expounding the 
constitution, has used various terms to express their sense of 
the term; as, The people of the United States in i Wh. 324. 
The people of America, 4 Wh. 193. The American people, 4 



THE CONSTITUTION A COMPACT 67 

Wh. 403, 6 Wh. 377, 380. It is deemed a term of 'becoming 
dignity/ suited to the solemnity of the occasion and instru- 
ment. 2 Dall. 471 ; 12 Wh. 354. But when they use the term, 
and describe how the people acted, and by what acts the in- 
strument was adopted, they add this expression; which one 
would think was in language comprehensible and clear, exclud- 
ing all construction, and admitting of no two-fold meaning 
or interpretation : 'No political dreamer was ever wild enough 
to think of breaking down the lines which separate the states, 
and of compounding the American people into one common 
mass. Of consequence, when they act, they act in their states/ 
4 Wh. 403 ; M'Culloch v. Maryland . . ." * 

"It is no imaginary power that can arrest the judicial arm, 
or a subordinate power that can, by its own authority, avoid 
the exercise of that judicial power over itself, which has been 
granted by a paramount power. Nor can 'the absolute sov- 
ereignty of the nation, which when the constitution was 
adopted/ was 'in the people of the nation'; be controlled by the 
'residuary sovereignty' of three-fourths of the states, in the 
people thereof, when the amendments were made. That sov- 
ereignty which can control all others, must be absolute: that 
which is controlled must be subordinate. If it is said that the 
constitution authorized this amendment, we should impute lit- 
tle of wisdom, foresight, or common prudence, to those who 
framed or adopted it, by ascribing its creation to a power so 
indifferent to its preservation ; or to make three-fourths of the 
states competent to throw off the shackles on their laws, which 
all the states, and the whole people thereof, had imposed. 

"There cannot, therefore, be, in my opinion, a proposition 
more hostile to the provisions of the fifth article, and these 
amendments as understood by this Court, than that the con- 
stitution was a creation of the whole people of the United 
States, in their aggregate collective capacity; as the one peo- 
ple, of one nation or state . . . f 

"Under the first census of 1790, the free white population 
of the thirteen states was 3,100,000; of which, Massachusetts 

* Baldwin, "View of the Constitution," pp. 30-32 ; Philadelphia, 1837. 
t Ibid., p. 19. 



68 SECESSION AND CONSTITUTIONAL LIBERTY 

had 469,900; New York, 314,000; Pennsylvania, 424,000; 
and Virginia (and Kentucky), 503,000; making 1,710,000; 
leaving 1,390,000 to the other nine states. These four states 
had 56 members in the House of Representatives, the other 
states 47; they had 8 votes in the Senate, the other states 
18; they had 64 votes for President, the other states 65. Nine 
states, with a white population of 1,390,000, could dissolve 
the old confederation, establish the new constitution, and 
throw out of the union four states, containing 1,700,000, or 
could control them if they became parties to it. 

"Was this a government of a majority of the people of the 
United States, as one people? Did the one people 'ordain and 
establish* this 'Constitution for the United States of America ?' 

"At the census of 1800, there were 16 states: the whole 
white population of which was 4,247,000; these four states, 
exclusive of Kentucky (taken from Virginia), contained 
2,226,000, the other 12 contained 2,021,000; these 4 states 
had 74 votes in the House, 8 in the Senate, and 82 votes for 
President; the other 12 states had 67 votes in the House, 24 
in the Senate, and 91 for President; the minority, in effect, 
controlling every branch of the government, and competent to 
amend the constitution. What became then of the government 
of the majority of the free white population, composing the 
people of the United States ? 

"At the census of 18 10, there were 17 states, with a white 
population of 5,765,000: of which, these states contained 
2,948,000, the other 13 contained 2,717,000; these 4 states 
had 93 votes in the House, 8 in the Senate, and 10 1 for Presi- 
dent; the other 13 states had 88 votes in the House, 26 in the 
Senate and 114 for President, the minority of the people still 
controlling. 

"At the census of 1820, there were 24 states, the white 
population 7,856,000; the 4 states, with Maine (taken from 
Mass.) and Kentucky, contained 4,199,000; the other 18 con- 
tained 3,657,000; the 6 states having 114 votes in the House, 
12- in the Senate, and 126 for President; the other 18 had 99 
votes in the House, 36 in the Senate, and 135 for President — 
the minority still ascendant. 



THE CONSTITUTION A COMPACT 69 

"In 1830, the entire white population was 10,846,000, of 
which, these 6 states contained 5,535,000; the other 18 states, 
including the territories, 5,311,000; the six states have 124 
votes in the House, 12 in the Senate, and 136 for President; 
the other 18 states have 117 votes in the House, 36 in the 
Senate, and 153 for President. 

"It thus appears, that from the year 1790, till this time, 
the four states of Massachusetts, New York, Pennsylvania 
and Virginia, have contained within their original boundaries, 
a majority of the whole people of the United States : yet such 
is the structure of the government, that there is no one act 
which could be effected by such majority. 

"Adding to the free white population of these states, accord- 
ing to the last census, and their present boundaries, that of 
Ohio and Tennessee, the 6 states contain 6,090,000; the other 
18 states 4,646,000, leaving a majority in the six states of 
1,444,000; which may be found to be perfectly passive for all 
purposes, except representation, in the House of Representa- 
tives. There are 9 states, . . . which can defeat a treaty, 
impeachment, proposition to amend the Constitution, or the 
passage of a law, without the approbation of the President, 
against the will of fifteen states, containing a majority of 
8,146,000 of the people of the United States, in the aggregate. 
Thirteen states, with a population of 2,504,300, can elect a 
President in the last resort, in opposition to 1 1 states with 8,- 
232,000. Congress is bound to call a convention to amend 
the constitution, on the application of the legislatures of two- 
thirds of states, whose population is only 3,546,000, less than 
one-third of the aggregate of all the states; and amendments 
may be adopted by 18 states, in opposition to an aggregate ma- 
jority of 1,444,000; one of which amendments might give the 
smallest state, an equality of suffrage in the House of Repre- 
sentatives, and in voting for President by electors. Seven 
states, with a white population of only 812,000, may defeat 
any constitutional amendment; though it might be called for 
by the residue of the people of the Union, amounting to 9,924,- 
000 ; so that a minority may force on a majority a new govern- 
ment; and less than one-thirteenth of the people of the United 



70 SECESSION AND CONSTITUTIONAL LIBERTY 

States in the aggregate, may continue the present without any 
change whatever, though the reasons which call for an altera- 
tion, may be most imperative for the good of the whole. 

"There are but two means of changing these results from 
the present organization of the government, — one is the divi- 
sion of the large, or the junction of small states into new ones; 
and the other, by giving them a representation in the senate, 
in proportion to their numbers. But the constitution has 
placed both beyond the power of any majority of the people, 
however preponderating; unless by a majority of the states 
in the one, and by all in the second case. 

" 'New states may be admitted by the congress into this 
Union; but no new state shall be formed or erected, within 
the jurisdiction of any other state, nor any state be formed 
by the junction of two or more states or parts of states, with- 
out the consent of the legislature of the states concerned, as 
well as of the congress.' . . . 

"The senators of any thirteen states can prevent the admis- 
sion of any new states, or the junction of old ones; this can ' 
be remedied only by an amendment, which 7 states can prevent. 

"The 5th article, providing for amending the constitution, 
contains this proviso: 'and that no state without its consent 
shall be deprived of its equal suffrage in the senate/ Thus the 
irrevocable, irrepealable supreme law of the land, has made 
Delaware, with an aggregate population of 77,000, the peer 
of New York in the senate, with her 2,000,000; and she may 
hold her rights in defiance of the constitutional power of 23 
states, with an aggregate population of 12,789,000; equal to 
166 to 1 ; in federal numbers, 165 to 1 ; and in free population 
147 to 1. 

"How contemptible are mere numbers, or majorities of the 
people, in comparison with the rights of states, by the stand- 
ard of the constitution ! ! 

"The basis of representation, composed of people and prop- 
erty, mixed into the constituent body of federal members, 
leads irresistibly to the character of the government. The in- 
evitable effect of making 5 slaves equal to 3 freemen, is, to 
take power from a majority of the people: so long as this 



THE CONSTITUTION A COMPACT 71 

apportionment of representation among the states continues; 
a minority of the people of the United States in the aggregate, 
may elect a majority of the members of the House of Repre- 
sentatives; and the conventions or legislatures of 7 of the 
slave-holding states, can perpetuate this state of things. 

"The general result of the last census, including the Dis- 
trict of Columbia and the territories, is: aggregate popula- 
tion 12,856,000; slaves, 2,010,000; federal numbers, 12,052,- 
000; free people, 10,846,000; slaves represented, 1,206,000; 
thus, the representation of the states in which they are owned, 
is increased by the addition of twenty-seven members; is a 
representation of an actual minority of the free people; and 
though the minority, they may control even this branch of 
the government, by a majority equal to the slave represen- 
tation. 

"These results are not the effect of accident: they must 
have been foreseen at the adoption of the constitution : unless 
it was anticipated that the population of the states would be 
in an inverse ratio to their territory. 

"In 1788, the whole territory of the thirteen states con- 
tained about 500,000 square miles; of which there was com- 
prehended in the boundaries of Virginia and Kentucky, then 
one state, 103,000; in North Carolina, including Tennessee, 
84,000; and in Georgia, including Mississippi and Alabama, 
153,000; in the aggregate 340,000. The other ten states, in- 
cluded only 167,000, adding the territory ceded by Virginia 
and New York, now composing the states of Ohio, Indiana, 
and Illinois, containing 134,000; all that was in possession of 
the confederacy or the states, was 640,000 square miles; of 
which, three states had more than one-half, while three others 
had no more than one-eighth part; two of which had only 
the one hundred and ninety-third, and one only the four 
hundredth part. 

"Yet this enormous disparity of territory had no more effect 
on the equality of a state with any other now, nor hereafter 
can have without its consent, than the disparity of popula- 
tion. Rhode Island, with 1,360 square miles of territory, is 
the peer of Virginia, with 64,000, Delaware is the equal of 



72 SECESSION AND CONSTITUTIONAL LIBERTY 

New York, though their population is most enormously dis- 
proportionate. The rights of these states are emphatically the 
rights of a minority of the people; and a government which 
can be organized, administered, and reorganized, by a minor- 
ity, whose power is expressly guaranteed against any majority 
of states or people, cannot be other than a 'federal govern- 
ment of these states.' 

"There can be no political absurdity more palpable, than 
that which results from the theory that the people of the 
United States, as one people, have instituted a government of 
the people; a majority (of the people) government; or one 
which can be altered by the majority: for that majority has 
no one right, can do no one act under the constitution, or pre- 
vent such amendments as would expunge every semblance of 
a popular feature from it, by reducing New York to an equal- 
ity with Delaware, in the House of Representatives, and in 
voting for President ; these being the only particulars in which 
the people of the largest have any more right than those of 
the smallest states. Nor is there a political truth more appa- 
rent from the bills of rights in the constitutions of the sev- 
eral states; their unanimous declaration in congress, in Oc- 
tober, 1774, and July, 1776; their alliance with France in 
1778; with each other in 1781 ; and the supreme law of 1788, 
established by the people of each, between themselves, as each 
sovereign ; than that the government, which they have brought 
into existence, is a creature of the people of the several states, 
a government of a majority of the states; which may be in 
all its departments, and whole action, administered by the 
representatives of the minority of the people of the United 
States ; and changed in its whole organization and distribution 
of powers, by such minority, in all respects save one; and that 
one is the provision which makes the right and power of the 
minority irresistible, by the equal suffrage in the Senate, for- 
ever secured to each state. 

"The 13th article of the confederacy contained a similar 
provision : the assent of each state was necessary to any altera- 
tion. 

"The principle, that a majority of states, of the people of 



THE CONSTITUTION A COMPACT 73 

the United States, or of either, in any unity of political char- 
acter, could, in any stage of our history, alter, abolish the old, 
or institute a new government, is utterly without any sanction 
in the acts of the states or congress. States were units who 
could impart or withdraw power at their pleasure, until they 
made an express delegation to congress by the league of 1781 ; 
each state had its option to become a party to the compact, 
constitution or grant, made in 1788, by nine states, or to re- 
main a free, sovereign, independent state, nation or power, 
foreign to the new Union, after the old was dissolved. 

"By becoming separate parties, they did not divest them- 
selves of their individual unity of character; they remain units 
as to representation, and as units, reserve all powers not dele- 
gated or prohibited : and the ultimate power of revoking all 
parts but one of the grant, with the concurrence of three- 
fourths of their associates, and modifying it at their pleasure. 

"This is the essence of supreme and sovereign power, which 
testifies that the ultimate absolute sovereignty, is in 'the several 
states/ and the people thereof; who can do by inherent right 
and power, anything in relation to the constitution, or change 
of government, except depriving the smallest state of its equal 
suffrage in the senate: not in the United States, or the people 
thereof, as one nation, or one people, who in their unity of 
character or power, can do nothing either by inherent right, 
or by representation, as a majority. 

"The power which can rightfully exercise acts of supreme 
absolute sovereignty, is the sovereign power of a state; no 
body or power, which can neither move or act, can be sov- 
ereign: it exists constitutionally, but as matter incapable of 
either. The soil of the United States, is as much the source 
of political power as its aggregate population. Until the 
power which can establish government is brought into action, 
and designates the one or the other as the basis of representa- 
tion or taxation, each is a perfect dead body; and both are 
perfectly so by the constitution, in reference to the United 
States in the aggregate, or as one nation. But in reference 
to the states, both the land and the population, within their 
separate boundaries, are brought into operation; its federal 



1 



74 SECESSION AND CONSTITUTIONAL LIBERTY 

numbers are made the stock from which representation arises, 
and become represented by the action of the qualified electors 
of the state; and the land in the state is assessed with taxation, 
by the same ratio as its representation is apportioned ; by which 
land produces revenue, in the same proportion as population 
produces representation. 

"This rule is perfectly arbitrary, being the result of a com- 
promise : the people of the states could base representation on 
property or people; they could select either, or a proportion 
of both, and the kind of either; and three-fourths of the states 
or people thereof, can now change the proportion, by exclud- 
ing slaves altogether, enumerating them as each a freeman, or 
substituting any other species of property than slaves. 

"Representation by numbers is not by natural right : slaves 
have neither political rights or power; it is by compact, the 
will and pleasure of the states who have so ordained it, as 
separate sovereigns; and in doing so, have shown in whom 
the supreme power is vested, and yet remains to be exercised 
in the future, as it has been in the past. 

"The institution of the federal government is decisive of the 
question, it shows the creature and the creator; the power 
which has made and can unmake the machine it has set in mo- 
tion, as the work of its own hands, moving within defined 
limits, operating only on specified subjects, by delegated au- 
thority, revocable at will. 

"The act of delegation is the exercise of sovereignty, and 
acting under it is a recognition of its supremacy: it may be 
without limitation in some cases, and until revoked it may 
be supreme; but it is so only as a delegated authority or 
agency, — the right to revoke, and render its exercise a nullity, 
is the test by which to ascertain in whom it is vested by orig- 
inal inherent right." 23 * 

The historical fact is then established by the political re- 
sults of the instrument itself, that "Their [the United States'] 
first union was formed by a compact of sovereign and inde- 

* Henry Baldwin, "View of the Constitution," pp. 20-25 ; Philadelphia, 
1837. 



THE CONSTITUTION A COMPACT 75 

pendent states upon covenants and conditions expressly stipu- 
lated in a written instrument called the Constitution. " 

It is also historically established by the records of the Fed- 
eral Convention which framed that instrument. 

On the question of ratifying and giving validity to the 
proposed Constitution, Mr. Gouverneur Morris, with the ex- 
press object of avoiding a ratification by the several constituent 
States, and its political consequences, said : 

"Whereas, in case of an appeal to the people of the United 
States, the supreme authority, the federal compact may be 
altered by a majority of them in like manner as the constitu- 
tion of a particular state may be altered by the majority of the 
people of a state" * 

He, therefore 

"moved that the reference of the plan be made to one gen- 
eral convention, chosen and authorized by the people, to con- 
sider, amend, and establish the same. Not seconded." 

"On the question for agreeing to the nineteenth resolution, 
touching the mode of ratification, as reported from the com- 
mittee of the whole, viz., to refer the Constitution, after the 
approbation of Congress, to assemblies chosen by the people, f 
nine states voted 'ay' ; one 'no. 5 



) >> 



Thus the Convention, which would not even second a motion 
to refer its work to one "assembly of the people," the object 
of the motion being stated that "the federal compact may be 
altered by a majority of them in like manner as the constitu- 
tion of a particular state may be altered by the majority of 
the people of a state," voted almost unanimously to refer it 
to assemblies of the same people divided into their several 
states. 24 

* Italics are the author's. 

f N. B. Not "an assembly"; though the same term "people" is used. 



CHAPTER V 
mr. madison's construction of the constitutional 

COMPACT 

The historical fact, then, being established, that the Consti- 
tution is a compact between States sovereign and independent 
at their accession thereto, it remains to be seen if it -results 
"that the mode of its formation subjects it to . . . the law 
of compact . . . that in every compact between two or more 
parties, the obligation is mutual; that the failure of one of 
the contracting parties to perform a material part of the agree- 
ment entirely releases the obligation of the other; and that 
where no arbiter is provided each party is remitted to his own 
judgment to determine the fact of failure, with all its conse- 
quences.' ' 

"On the question for agreeing to the nineteenth resolution, 
touching the mode of ratification," Mr. Madison's Report of 
the Debates says : 

"Mr. Gouverneur Morris considered the inference of Mr. 
Ellsworth from the plea of necessity, as applied to the estab- 
lishment of a new system on the consent of the people of a 
part of the states, in favor of a like establishment on the con- 
sent of a part of the legislature, as a non sequitur. If the Con- 
federation is to be pursued no alteration can be made without 
the unanimous consent of the legislatures. Legislative altera- 
tions not conformable to the federal compact would clearly not 
be valid. The judges would consider them as null and void. 
Whereas in case of an appeal to the people of the United 
States, the supreme authority, the federal compact may be 
altered by a majority of them, in like manner as the constitu- 
tion. of a particular state may be altered by the majority of 
the people of a state. The amendment moved by Mr. Ells- 
worth erroneously supposes that we are proceeding on the 

76 



CONSTITUTIONAL COMPACT 77 

basis of the Confederation. This Convention is unknown to 
the Confederation. 

"Mr. Madison thought it clear that the legislatures were 
incompetent to the proposed changes. These changes would 
make essential inroads on the state constitutions, and it would 
be a novel and dangerous doctrine, that a legislature could 
change the constitution under which it held its existence. 
There might indeed be some constitutions within the Union, 
which had given a power to the legislature to concur in altera- 
tions of the federal compact. But there were certainly some 
which had not; and in the case of these, a ratification must of 
necessity be obtained from the people. He considered the 
difference between a system founded on the legislatures only, 
and one founded on the people, to be the true difference be- 
tween a league or treaty, and a constitution. 2 * The former 
in point of moral obligation, might be as inviolable as the lat- 
ter. In point of political operation, there were two important 
distinctions in favor of the latter. 

"First, a law violating a treaty ratified by a preexisting law 
might be respected by the judges as a law, though an unwise 
or perfidious one. A law violating a constitution established 
by the people themselves would be considered by the judges as 
null and void. Secondly the doctrine laid down by the law 
of nations in the case of treaties is, that a breach of any one 
article by any of the parties frees the other parties from their 
engagements* In the case of a union of people under one 
constitution, the nature of the pact has always been under- 
stood to exclude such an interpretation. Comparing the two 
modes, in point of expediency, he thought all the considera- 
tions which recommended this Convention, in preference to 
Congress, for proposing the reform, were in favor of state 
conventions, in preference to the legislatures, for examining 
and adopting it." 

As a statement of the differing consequences resulting by 
the law of nations from a treaty between sovereign powers, 
or league, and a government established within itself by a sov- 

* Italics by B. & j 



78 SECESSION AND CONSTITUTIONAL LIBERTY 

ereign power, this conclusion cannot be questioned; and it 
was familiar to the makers of the Constitution. 26 The differ- 
ence between the conclusion of Mr. Madison and that of the 
Convention of South Carolina, which passed the Ordinance of 
Secession, lies neither as to the historical facts of the estab- 
lishment of the Constitution,* nor as to the validity of the 
principle here laid down by him, but as to the applicability of 
that principle to the Constitution; i. e.: Did that instrument 
constitute "a union of people under one constitution'' in the 
sense used by Mr. Madison ? This is the real point at issue in 
the doctrine of Secession. 

According to Mr. Madison himself f the Union was a union 
of various sovereign peoples, the citizens of which entered 
it not individually but in virtue of being citizens of States, 
each of which was a "union of people under one constitution," 
in the sense meant by Mr. Madison, and each of which ac- 
cepted it for its own citizens only. These States did not 
enter it unreservedly. They made express reservation of all 
such rights of separate government as they did not specifically 
grant to the common government: thereby at once creating 
a radical and most important difference in kind between such 
a constitution and that wherein the majority rules. It could 
not be said of the Constitution, that "the nature of the pact 
had always been understood to exclude (the) interpretation 
. . . that a breach of any one article by any of the parties 
frees the other parties from their engagements," for the sim- 
ple and adequate reason (among others) that no such pact as 
this had previously been known, and that no such people then 
existed, or was called into existence for the purpose of ratify- 
ing such a union. As Mr. Madison himself repeatedly says 
of the pact : 

"It is in a manner unprecedented; we cannot find one ex- 
press example in the experience of the world." 27 J 

But, obeying Mr. Madison's rule, and "seeking its character 
in itself," how far the result inferred by him from a conven- 

* v. Appendix 31. 

flbid. 

t Debates in Virginia Ratifying Convention. 



CONSTITUTIONAL COMPACT 79 

tional ratification of the Constitution by the people of the sev- 
eral states obtained may be conveniently tested by principles 
laid down by himself, at another stage of the Debates. 

"Mr. Patterson. . I . The Confederation is in the nature 
of a compact; and can any state, unless by the consent of the 
whole, either in politics or law, withdraw their powers ? Let 
it be said by Pennsylvania, and the other large states, that they, 
for the sake of peace, assented to the Confederation; can she 
now resume her original right without the consent of the 
donee?" 

Mr. Madison replied: "It had been alleged, that the Con- 
federation, having been formed by unanimous consent, could 
be dissolved by unanimous consent only. Does this doctrine 
result from the nature of compacts? Does it arise from any 
particular stipulation in the Articles of Confederation? If we 
consider the Federal Union as analogous to the fundamental 
compact by which individuals compose one society, and which 
must, in its theoretic origin at least, have been the unanimous 
act of the component members, it cannot be said that no dis- 
solution of the compact can be effected without unanimous 
consent. A breach of the fundamental principles of the com- 
pact, by a part of the society, would certainly absolve the 
other part from their obligations to it. If the breach of any 
article, by any of the parties, does not set the others at liberty, 
it is because the contrary is implied in the compact itself, and 
particularly by that law of it which gives an indefinite author- 
ity to the majority to bind the whole, in all cases. This latter 
circumstance shows, that we are not to consider the Federal 
Union as analogous to the social compact of individuals : for, 
if it were so, a majority would have a right to bind the rest, and 
even to form a new constitution for the whole; which the 
gentleman from New Jersey would be among the last to admit. 
If we consider the Federal Union as analogous, not to, the 
social compacts among individual men, but to the conventions 
among individual states, what is the doctrine resulting from 
these conventions? Clearly, according to the expositors of the 
law of nations, that a breach of any one article, by any one 



8o SECESSION AND CONSTITUTIONAL LIBERTY 

party, leaves all the other parties at liberty to consider the 
whole convention as dissolved, unless they choose rather to 
compel the delinquent party to repair the breach. In some 
treaties, indeed, it is expressly stipulated, that a violation of 
particular articles shall not have that consequence, and even 
that particular articles shall remain in force during war, which 
is in general understood to dissolve all subsisting treaties. But 
are there any exceptions of this sort to the Articles of Con- 
federation? So far from it, that there is not even an express 
stipulation that force shall be used to compel an offending 
member of the . . . Federal Union to discharge its duty." * 

How does the Constitutional compact differ from that of 
the Confederation in those decisive points here laid down by 
Mr. Madison? That it is not a "social compact among indi- 
vidual men" (besides being everywhere explicitly asserted by 
him) is necessarily to be deduced from his statements. So 
far from stipulating (or implying) any "law which gives an 
indefinite authority to the majority (of the people of the 
United States) to bind the whole, in all cases," the Constitu- 
tion is, to the contrary, as has been shown, based on provi- 
sions wholly irreconcilable with any such law; and intended 
to prevent such rule of the majority. 28 

"This . . . circumstance shows that we are not to con- 
sider the [Constitution] as analogous to the social compact of 
individuals : for, if it were so, a majority would have a right 
to bind the rest." 

"If we consider the Federal Union as analogous, not to the 
social compacts among individual men, but to the conventions 
among individual states, what is the doctrine resulting from 
these conventions? Clearly, according to the expositors of 
the law of nations, that a breach of any one article, by any 
one party, leaves all the other parties at liberty to consider the 
whole convention as dissolved, unless they choose rather to 
compel the delinquent party to repair the breach. In some 
treaties, indeed, it is expressly stipulated, that a violation of 

♦Elliot's "Debates," Vol. I, p. 413; W., 1836. 



CONSTITUTIONAL COMPACT 81 

particular articles shall not have this consequence, and even 
that particular articles shall remain in force during war, which 
is in general understood to dissolve all subsisting treaties. But 
are there any exceptions of this sort to the Articles of Confed- 
eration ?" 

But are there any exceptions of this sort to the Constitu- 
tion? It certainly is nowhere "expressly stipulated, that a vio- 
lation of particular articles shall not have this consequence," 
viz.: "that a breach of any one article by any one party leaves 
all the other parties at liberty to consider the whole conven- 
tion as dissolved." And so far from there being a stipula- 
tion (expressed or implied) "that force shall be used to com- 
pel an offending member of the Federal Union to discharge its 
duty," such a provision repeatedly proposed was as repeatedly 
denied under any form. 29 The Federal Government was not 
even granted a negative upon State laws. 30 

Therefore, if Mr. Madison's principles, as developed in the 
Federal Convention, be accepted, the South Carolina "Decla- 
ration" ("that the mode of its formation subjects it to a third 
principle, namely : the law of compact. . . . that in every 
compact between two or more parties, the obligation is mutual ; 
that the failure of one of the contracting parties to perform 
a material part of the agreement entirely releases the obliga- 
tion of the other ; and that where no arbiter is provided, each 
party is remitted to his own judgment to determine the fact 
of failure, with all its consequences") must be considered fully 
proven. Yet, if the Constitution was ratified under the belief 
that the "difference between a system founded on the legis- 
latures only, and one founded on the people was the true dif- 
ference between a league or treaty and a Constitution," in the 
sense of Mr. Madison, such belief would make it "a Consti- 
tution" : but the proceedings of various ratifying conventions 
forbid such a supposition. 

At a later date Mr. Madison discussed the question at length, 
without, however, in so far as is perceived, confuting the un- 
derstanding here upheld of the principle in question. 31 

1—6 



CHAPTER VI 



mr. Buchanan's doctrine 



The political effects of any given construction of the Con- 
stitution, impractical, or disastrous, though they may be, do 
not in themselves definitively prove such construction to be 
contradictory to the intention of the instrument. They are, 
however, certainly corroborative of such a belief; indeed, 
strongly corroborative, if such impracticability, or disastrous 
effect, seems obviously to ensue upon such construction ; since 
the framers of the instrument may be credited with at least or- 
dinary political foresight. In this view it is worth while to 
consider Mr. Madison's doctrine dynamically, as put in prac- 
tice by Mr. Buchanan. 

Attorney-General Black replied to Mr. Buchanan's ques- 
tions upon his Constitutional powers in reference to secession 
• as follows : 

"I come now to the point in your letter, which is prob- 
ably of the greatest practical importance. By the act of 1807, 
you may employ such parts of the land and naval forces as 
you may judge necessary for the purpose of causing the laws 
to be duly executed, in all cases where it is lawful to use the 
militia for the same purpose. By the act of 1795 the militia 
may be called forth 'whenever the laws of the United States 
shall be opposed, or the execution thereof obstructed in any 
State by combinations too powerful to be suppressed by the 
ordinary course of judicial proceedings, or by the power vested 
in the marshals.' This imposes upon the President the sole 
responsibility of deciding whether the exigency has arisen 
which requires the use of military force; and in proportion to 
the magnitude of that responsibility will be his care not to 
overstep the limits of his legal and just authority. 

82 



MR. BUCHANAN'S DOCTRINE 83 

"The laws referred to in the act of 1795 are manifestly 
those which are administered by the judges, and executed by 
the ministerial officers of the courts for the punishment of 
crime against the United States, for the protection of rights 
claimed under the Federal Constitution and laws, and for the 
enforcement of such obligations as come within the cognizance 
of the Federal Judiciary. To compel obedience to these laws, 
the courts have authority to punish all who obstruct their 
regular administration, and the marshals and their deputies 
have the same powers as sheriffs and their deputies in the sev- 
eral States in executing the laws of the States. These are the 
ordinary means provided for the execution of the laws; and 
the whole spirit of our system is opposed to the employment 
of any other except in cases of extreme necessity arising out 
of great and unusual combinations against them. Their agency 
must continue to be used until their incapacity to cope with the 
power opposed to them shall be plainly demonstrated. It is 
only upon clear evidence to that effect that a military force 
can be called into the field. Even then its operations must be 
purely defensive. It can suppress only such combinations as 
are found directly opposing the laws and obstructing the ex- 
ecution thereof. It can do no more than what might and 
ought to be done by a civil posse, if a civil posse could be 
raised large enough to meet the same opposition. On such 
occasions, especially, the military power must be kept in strict 
subordination to the civil authority, since it is only in aid 
of the latter that the former can act at all. 

"But what if the feeling in any State against the United 
States should become so universal that the Federal officers 
themselves (including judges, district attorneys and marshals) 
would be reached by the same influences, and resign their 
places? Of course, the first step would be to appoint others 
in their stead, if others could be got to serve. But in such an 
event, it is more than probable that great difficulty would be 
found in filling the offices. We can easily conceive how it 
might become altogether impossible. We are therefore obliged 
to consider what can be done in case we have no courts to 
issue judicial process, and no ministerial officers to execute it. 



84 SECESSION AND CONSTITUTIONAL LIBERTY 

In that event, troops would certainly be out of place, and their 
use wholly illegal. If they are sent to aid the courts and 
marshals, there must be courts and marshals to be aided. 
Without the exercise of those functions which belong exclu- 
sively to the civil service, the laws cannot be executed in any 
event, no matter what may be the physical strength which the 
Government has at its command. Under such circumstances, 
to send a military force into any State, with orders to act 
against the people, would be simply making war upon them. 

"The existing laws put and keep the Federal Government 
strictly on the defensive. You can use force only to repel an 
assault on the public property and aid the courts in the per- 
formance of their duty. If the means given you to collect 
the revenue and execute the other laws be insufficient for that 
purpose, Congress may extend and make them more effectual 
to those ends. 

"If one of the States should declare her independence, your 
action cannot depend upon the rightfulness of the cause upon 
which such declaration is based. Whether the retirement of 
the State from the Union be the exercise of a right reserved 
in the Constitution, or a revolutionary movement, it is cer- 
tain that you have not in either case the authority to recognize 
her independence or to absolve her from her Federal obliga- 
tions. Congress, or the other States in convention assembled, 
must take such measures as may be necessary and proper. In 
such an event, I see no course for you but to go straight 
onward in the path you have hitherto trodden — that is, execute 
the laws to the extent of the defensive means placed in your 
hands, and act generally upon the assumption that the pres- 
ent constitutional relations between the States and the Fed- 
eral Government continue to exist, until a new code of things 
shall be established either by law or force. 

"Whether Congress has the constitutional right to make 
war against one or more States, and require the Executive of 
the Federal Government to carry it on by means of force 
to -be drawn from the other States, is a question for Congress 
itself to consider. It must be admitted that no such power is 
expressly given; nor are there any words in the Constitution 



MR. BUCHANAN'S DOCTRINE 85 

which imply it. Among the powers enumerated in Article 
1st, Section 8, is that 'to declare war, grant letters of marque 
and reprisal, and to make rules concerning captures on land 
and water/ This certainly means nothing more than the 
power to commence and carry on hostilities against the for- 
eign enemies of the nation. Another clause in the same sec- 
tion gives Congress the power 'to provide for the calling forth 
the militia/ and to use them within the limits of the State. 
But this power is so restricted by the words which immedi- 
ately follow that it can be exercised only for one of the fol- 
lowing purposes: 1. To execute the laws of the Union; that 
is, to aid the Federal officers in the performance of their regu- 
lar duties. 2. To suppress insurrections against the State; 
but this is confined by Article IV, Section 4, to cases in which 
the State herself shall apply for assistance against her own 
people. 3. To repel the invasion of a State by enemies who 
come from abroad to assail her in her .own territory. All 
these provisions are made to protect the States, not to author- 
ize an attack by one part of the country upon another; to 
preserve the peace, and not to plunge them into civil war. Our 
forefathers do not seem to have thought that war was calcu- 
lated 'to form a more perfect Union, establish justice, insure 
domestic tranquillity, provide for the common defence, pro- 
mote the general welfare and secure the blessings of liberty 
to ourselves and our posterity/ There was undoubtedly a 
strong and universal conviction among the men who framed 
and ratified the Constitution, that military force would not 
only be useless, but pernicious, as a means of holding the 
States together. 

"If it be true that war cannot be declared, nor a system 
of general hostilities carried on by the Central Government 
against a State, then it seems to follow that an attempt to do 
so would be ipso facto an expulsion of such State from the 
Union. Being treated as an alien and an enemy, she would 
be compelled to act accordingly. And if Congress shall break 
up the present Union by unconstitutionally putting strife and 
enmity and armed hostility between different sections of the 
country, instead of the domestic tranquillity which the Con- 



86 SECESSION AND CONSTITUTIONAL LIBERTY 

stitution was meant to insure, will not all the States be ab- 
solved from their Federal obligations? Is any portion of the 
people bound to contribute their money or their blood to 
carry on a contest like that ? 

"The right of the General Government to preserve itself in 
its whole constitutional vigor by repelling a direct and positive 
aggression upon its property or its officers cannot be denied. 
But this is a totally different thing from an offensive war to 
punish the people for the political misdeeds of their State gov- 
ernment, or to enforce an acknowledgment that the Govern- 
ment of the United States is supreme. The States are col- 
leagues of one another, and if some of them shall conquer 
the rest, and hold them as subjugated provinces, it would 
totally destroy the whole theory upon which they are now 
connected. 

"If this view of the subject be correct, as I think it is, then 
the Union must utterly perish at the moment when Congress 
shall arm one part of the people against another for any pur- 
pose beyond that of merely protecting the General Govern- 
ment in the exercise of its proper constitutional functions. 

"I am, very respectfully, yours, etc., 

"J. S. Black." 

Upon this advice Judge Curtis comments as follows : 

"The soundness of Mr. Black's answers to the questions 
stated by the President does not admit of a doubt. Those who 
have assailed him and the President, who acted upon his offi- 
cial advice, have done so with very little regard to the supreme 
law of the land. They have not perceived the path in which 
the President had to move in the coming emergency, and 
they have overlooked the imperative obligation which rested 
upon him not to assume powers with which he had not been 
clothed by the Constitution and the laws. However certain 
it was that South Carolina would undertake to place herself 
out of the pale of the Union, no coercion could have been 
applied to her in her political capacity as a State, to prevent 
her from taking that step, without instantly bringing to her 



MR. BUCHANAN'S DOCTRINE 87 

side every other State whose sympathies were with her on 
the subject of slavery, however they might hesitate in regard 
to secession as a remedy against the apprehensions which were 
common, more or less, to the people of the whole slavehold- 
ing section. Even if the President had not been restrained 
by this consideration, he had no constitutional power to de- 
clare, no authority to prosecute, and no right to institute a 
war against a State. He could do nothing but to execute the 
laws of the United States within the limits of South Caro- 
lina, in case she should secede, by such means as the existing 
laws had placed in his hands, or such further means as the 
Congress which was about to assemble might see fit to give 
him, and to maintain the possession of the public property 
of the United States within the limits of that State. What 
the existing means were, for either of those purposes, was 
clearly pointed out by his official adviser, the Attorney Gen- 
eral. For the execution of the laws, these means might wholly 
fail him, if the Federal civil officers in South Carolina should 
renounce their offices and others could not be procured to 
take their places. For maintaining possession of the public 
property of the United States, he had to act wholly upon the 
defensive . . . 

"There is one part of Mr. Black's opinion on which it is 
proper to make some observations here, because it has a pros- 
pective bearing upon the basis on which the civil war is to be 
considered to have been subsequently prosecuted. It is not 
of much moment to inquire how individual statesmen, or pub- 
licists, or political parties, when the war had begun and was 
raging, regarded its legal basis; but it is of moment, in ref- 
erence to the correctness of the doctrine acted upon by Presi- 
dent Buchanan during the last four months of his administra- 
tion, to consider what was the true basis of that subsequent 
war under the Constitution of the United States, The reader 
has seen that Mr. Black, in his official opinion, not only 
rejected the idea that the President could constitutionally make 
war upon a State of his own volition, but that he did not 
admit that the power to do so was expressly or implicitly given 
to Congress by the Constitution. What then did the Attorney 



88 SECESSION AND CONSTITUTIONAL LIBERTY 

General mean by instituting or carrying on war -against one or 
more States ? It is obvious, first, that he meant offensive war, 
waged against a State as if it were a foreign nation, to be 
carried on to the usual results of conquest and subjugation; 
second, that he fully admitted and maintained the right of 
the Federal Government to use a military force to suppress 
all obstructions to the execution of the laws of the United 
States throughout the Union, and to maintain the possession 
of its public property. This distinction was from the first, 
and always remained, of the utmost importance. It became 
entirely consistent with the recognition, for the time being, 
of a condition of territorial civil war, carried on by the law- 
ful Government of the Union to suppress any and all military 
organizations arrayed against the exercise of its lawful au- 
thority; consistent with the concession of the belligerent char- 
acter to the Confederate government as a de facto power hav- 
ing under its control the resources and the territory of numer- 
ous States ; consistent also with the denial to that government 
of any character as a power de jure; and alike consistent with 
a purpose to suppress and destroy it. So far as the war sub- 
sequently waged was carried on upon this basis, it was carried 
on within the limits of the Constitution, and by the strictest 
constitutional right. So far as it was carried on upon any 
other basis, or made to result in anything more than the sup- 
pression of all unlawful obstructions to the exercise of the 
Federal authority throughout the Union, it was a war waged 
outside of the Constitution, and for objects that were not 
within the range of the powers bestowed by the Constitution 
on the Federal Government. In a word, the Federal Gov- 
ernment had ample power under the Constitution to suppress 
and destroy the Confederate government and all its military 
array, from whatever sources that government or its military 
means were derived, but it had no constitutional authority 
to destroy a State, or to make war upon its unarmed popu- 
lation, as it would have under the principles of public law 
to destroy the political autonomy of a foreign nation with 
which it might be at war, or to promote hostilities against its 
people. 



MR. BUCHANAN'S DOCTRINE 89 

"Doubtless, as will be seen hereafter when I come to speak 
of that part of the President's message which related to this 
topic of making war upon a State, the language made use of 
was capable of misconstruction, and certain it is that it was 
made the subject of abundant cavil, by those who did not wish 
that the President should be rightly understood ; as it was also 
made a subject of criticism by the Attorney General when the 
message was submitted to the cabinet. The language chosen 
by the President to express his opinion on the nature and kind 
of power which he believed that the Constitution had not dele- 
gated to Congress, described it as a 'power to coerce a State 
into submission which is attempting to withdraw, or has 
actually withdrawn from the Confederacy/ This was in sub- 
stance a description of the same power which the framers 
of the Constitution had expressly rejected. It was before the 
Convention of 1787 in the shape of a clause 'authorizing an 
exertion of the force of the whole against a delinquent state/ 
which Mr. Madison opposed as 'the use of force against a 
State,' and which he said would look more like a declaration 
of war than an infliction of punishment, and would probably 
be considered by the party attacked as a dissolution of all 
previous compacts by which it might be bound. On another 
occasion, Mr. Madison said that 'any government for the 
United States, formed on the supposed practicability of using 
force against the unconstitutional proceedings of the States, 
would prove as visionary and fallacious as the government of 
the [old] Congress.' When, therefore, after the rejection of 
the idea of using force to restrain a State from adopting an 
unconstitutional proceeding, the framers of the Constitution 
proceeded to create a government endowed with legislative, 
judicial and executive power over the individual inhabitants of 
a State, and authorized it to use the militia to execute the laws 
of the Union, they made and left upon our constitutional his- 
tory and jurisprudence a clear distinction between coercing a 
State, in its sovereign and political character, to remain in the 
Union, and coercing individuals to obey the laws of the Union. 
Mr. Buchanan might then reasonably assume, that a distinction 
thus clearly graven upon the constitutional records of the 



90 SECESSION AND CONSTITUTIONAL LIBERTY 

country would be known and recognized by- all men; and 
although the expression to 'coerce a State by force of arms 
to remain in the Union,' might if severed from the accom- 
panying explanation of its meaning, be regarded as ambiguous, 
it will be found hereafter that it was not so used as to justify 
the inference that if a State were to undertake to secede from 
the Union, the President would disclaim or surrender the pow- 
er to execute the laws of the Union within her borders. It 
will be found also, by adverting to the Attorney General's 
answers to the President's questions, that there was in truth 
no real difference of opinion between them on this sub- 
ject." 32 * 

"Mr. Jefferson Davis, who represents, with as much logical 
consistency as any one, the whole of the doctrine or theory of 
secession, has always maintained that the distinction between 
coercing a State, and coercing the individual inhabitants of 
that State to submit to the laws of the United States, is no 
distinction at all; that the people of the State are the State; 
and that to use a military force to execute the laws of the 
United States upon individuals, within the limits of a State 
that has seceded from the Union, is to make war upon the 
State. (See his speech in the Senate, January 10, 1861, and 
his recent work on the Rise and Fall of the Confederate Gov- 
ernment. Index, verb. 'Secession.') Let us, for a moment, 
inquire whether Buchanan's distinction was answered 'by 
reason of its very absurdity.' 1. The States, in their corpor- 
ate and political capacity, are not the subjects or objects of 
Federal legislation. The legislative powers of the Federal 
Constitution are not intended to be exercised over States, 
but they are intended to be exercised over individuals. An 
Act of Congress never commands a State to do anything; it 
commands private individuals to do a great many things. 
The States are prohibited by the Constitution from doing 
certain things, but these prohibitions execute themselves 
through the action of the judicial power upon persons. No 
State can be acted upon by the judicial power at the instance 
of the United States. Every inhabitant of a State can be 
■ * George T. Curtis, "Life of Buchanan," Vol. II, pp. 322 et seq. 



MR. BUCHANAN'S DOCTRINE 91 

acted upon by the judicial power, in regard to anything that 
is within the scope of the legislative powers of the Consti- 
tution. 2. The coercion of individuals to obey the laws of 
the United States constitutes the great difference between our 
present Constitution and the Articles of Confederation. 3. 
The right to use force to execute the laws of the United States, 
by removing all obstructions to their execution, not only 
results from the power to legislate on the particular subject, 
but it is expressly recognized by the Constitution. The char- 
acter of that force and the modes in which it may be employed, 
depend both on direct constitutional provision, and on the 
legislative authority over all the people of the United States 
in respect to certain subjects and relations. All this will be 
conceded to be true, so long as a State remains in the Union. 
Does it cease to be true, when a State interposes her sovereign 
will, and says that the laws of the United States shall not be 
executed within her limits, because she has withdrawn the 
powers which she deposited with the General Government? 
What does this make, but a new case of obstruction to the 
execution of the Federal laws, to be removed by acting on 
the individuals through whom the obstruction is practically 
tried? And if, in the removal of the obstruction, the use of 
military power becomes necessary, is war made upon the 
State ? It is not, unless we go the whole length of saying that 
the interposition of the sovereign will of the State ipso facto 
makes her an independent power, erects her into a foreign na- 
tion, and makes her capable of being dealt with as one enemy 
is dealt with by another. To deny the right of the United 
States to execute its laws, notwithstanding what is called the 
secession of a State, is to impale one's self upon the other 
horn of the dilemma : for if that right does not exist, it must 
be because the State has become absolutely free and independ- 
ent of the United States, and may be made a party to an 
international war. 33 Mr. Buchanan saw and constantly and 
consistently acted upon the true distinction between making 
war upon a State, and enforcing the laws of the United States 
upon the inhabitants of a State." * 

* Geo. T. Curtis, "Life of Buchanan," Vol. 2, pp. 328-329. 



92 SECESSION AND CONSTITUTIONAL LIBERTY 

Mr. Buchanan's doctrine then was (the same" being also as- 
serted by himself) that, while the Constitution absolutely dis- 
allowed the coercion of a State, qua State, by the Federal gov- 
ernment, it permitted to the latter the coercion of all the indi- 
viduals constituting such State. 

Judge Curtis justifies this proposition by a chain of reason- 
ing leading up to the following conclusion : 

"And if, in the removal of the obstruction, the use of mili- 
tary power becomes necessary, is war made upon the State? 
It is not, unless we go the whole length of saying that the 
interposition of the sovereign will of the State ipso facto 
makes her an independent power, erects her into a foreign 
nation, and makes her capable of being dealt with as one enemy 
is dealt with by another." 

This inquiry is to the point that this is exactly what "the 
interposition of the sovereign will of the State" does effect. 
Divested of verbiage, Mr. Curtis's argument is that the United 
States cannot constitutionally coerce a State to remain in the 
Union, but can constitutionally coerce all the citizens of the 
State to obey the laws of the Union. In other words, that 
the State has the constitutional right to erect itself into a 
foreign nation, provided its citizens remain under the laws 
of the confederation to which they have ceased to belong. 
Can any one suppose that the framers and ratifiers of the Con- 
stitution intended this? 

Returning to the political effects of Mr. Buchanan's doc- 
trine, Mr. Curtis says: 

"Mr. Jefferson Davis, who represents, with as much logical 
consistency as any one, the whole of the doctrine or theory 
of secession, has always maintained that the distinction be- 
tween coercing a State, and coercing the individual inhabi- 
tants of that State to submit to the laws of the United States, 
is no distinction at all; that the people of the State are the 
State; and that to use a military force to execute the laws 
of the United States upon individuals, within the limits of 
a State that has seceded from the Union, is to make war upon 



MR. BUCHANAN'S DOCTRINE 93 

the State. Let us, for a moment, inquire whether Buchanan's 
distinction was answered 'by reason of its very absurdity.' " 

Replying to his own question, Mr. Curtis says : 

" . . . What then did the Attorney General mean by 
instituting or carrying on war against one or more States ? It 
is obvious, first, that he meant offensive war, waged against a 
State as if it were a foreign nation, to be carried on to the 
usual results of conquest and subjugation; second, that he 
fully admitted and maintained the right of the Federal Gov- 
ernment to use a military force to suppress all obstructions to 
the execution of the laws of the United States throughout the 
Union, and to maintain the possession of its public property. 
This distinction was from the first, and always remained, of 
the utmost importance. It became entirely consistent with 
recognition, for the time being, of a condition of territorial 
civil war, carried on by the lawful Government of the Union 
to suppress any and all military organizations arrayed against 
the exercise of its lawful authority; consistent with the con- 
cession of the belligerent character to the Confederate govern- 
ment as a de facto power having under its control the re- 
sources and the territory of numerous States; consistent also 
with the denial to that government of any character as a 
power de jure; and alike consistent with a purpose to suppress 
and destroy it. So far as the war subsequently waged was 
carried on upon this basis, it was carried on within the limits 
of the Constitution, and by the strictest constitutional right. 
So far as it was carried on upon any other basis, or made to 
result in anything more than the suppression of all unlawful 
obstructions to the exercise of the Federal authority through- 
out the Union, it was a war waged outside of the Constitu- 
tion, and for objects that were not within the range of the 
powers bestowed by the Constitution upon the Federal Gov- 
ernment. . . . When, therefore, after the rejection of the 
idea of using force to restrain a State from adopting an un- 
constitutional proceeding, the framers of the Constitution pro- 
ceeded to create a government endowed with legislative, judi- 
cial and executive power over the individual inhabitants of a 



94 SECESSION AND CONSTITUTIONAL LIBERTY 

State, and authorized it to use the militia to execute the laws 
of the Union, they made and left upon our constitutional his- 
tory and jurisprudence a clear distinction between coercing 
a State, in its sovereign and political character, to remain 
in the Union, and coercing individuals to obey the laws of 
the Union. Mr. Buchanan might then reasonably assume, that 
a distinction thus clearly graven upon the constitutional rec- 
ords of the country would be known and recognized by all 
men; and although the expression to 'coerce a State by force 
of arms to remain in the Union,' might, if severed from the 
accompanying explanation of its meaning, be regarded as 
ambiguous, it will be found hereafter that it was not so used 
as to justify the inference that if a State were to undertake to 
secede from the Union, the President would disclaim or 
surrender the power to< execute the laws of the Union within 
her borders/' 

It is not necessary to the point now under discussion to con- 
sider if the "distinction, between coercing a State, in its sov- 
ereign and political character, to remain in the Union, and 
coercing [the] individuals [composing it] to obey the laws of 
the Union," might be a "clear" one. The question now con- 
sidered is if such a distinction has any such political effect as 
was expressly aimed at by the Constitution. 

The object expressly aimed at by the refusal of the right 
of coercion to the general government was the avoidance of 
war between the States. Not "offensive" war, or war of any 
special abstract kind; but war, plain war, killing, destruction 
of property, — the common or garden variety, very well known 
to Count Tilly, General von Hindenburg, William Tecumseh 
Sherman, et al. 

As Mr. Hamilton said : 

"What picture does this idea present to our view? . . . 
Congress marching the troops of one state into the bosom of 
another ; this state collecting auxiliaries, and forming, perhaps, 
a majority against its federal head. Here is a nation at war 
with itself. Can any reasonable man be well disposed towards 
a government which makes war and carnage the only means 



MR. BUCHANAN'S DOCTRINE 95 

of supporting itself — a government that can exist only by the 
sword? Every such war must involve the innocent with the 
guilty. This single consideration should be sufficient to dis- 
pose every peaceable citizen against such a government. But 
can we believe that one state will ever suffer itself to be used 
as an instrument of coercion? The thing is a dream; it is 
impossible. " * 

As Attorney-General Black stated : 

"Our forefathers do not seem to have thought that war 
was calculated 'to form a more perfect Union, establish jus- 
tice, insure domestic tranquillity, provide for the common 
defence, promote the general welfare and secure the blessings 
of liberty to ourselves and our posterity.' There was un- 
doubtedly a strong and universal conviction among the men 
who framed and ratified the Constitution, that military force 
would not only be useless, but pernicious, as a means of hold- 
ing the States together." 

The rule laid down by Chief Justice Marshall, in Gibbons v. 
Ogden, is, it is thought, according to his expression, "a well 
settled rule" of construction, viz.: 

"If from the imperfection of human language, there should 
be serious doubts respecting the extent of any given power, it 
is a well settled rule that the objects for which it was given, 
especially when those objects are expressed in the instrument 
itself, should have great influence on the construction." 

"The objects of the powers" of the Constitution are "to 
insure domestic tranquillity . . . promote the general wel- 
fare," etc. How are these objects fulfilled by Mr. Black's 
doctrine? Are "war and carnage" and its other accompani- 
ments avoided? Or are these "domestic tranquillity," etc.? 
Mr. Buchanan's distinction was certain to graduate in war, 
whether for offensive or defensive purposes, — and, in point of 
fact, broke down in war. 

* Elliot's "Debates," Vol. II, p. 233. 



CHAPTER VII 

mr. Lincoln's doctrine 

Mr. Madison's doctrine, — which seeks to reconcile the 
historical facts at the basis of the Federal government with 
a Constitutional power of coercion, direct or indirect, over 
the States, or their people, therein appertaining, — carried into 
action, thus leads to a logical impasse. The doctrine under 
which war was successfully waged against secession, and 
which must therefore be accepted as the official anti-secession 
doctrine, is as absolutely opposed in its premises to those of 
Mr. Madison as it is in its conclusion to that which he denied. 
Mr. Lincoln, the official and actual head of the anti-secession 
party, must be accepted as its mouthpiece. According to this 
doctrine, the United States is, in its origin and government, a 
consolidated republic to be governed by the majority of the 
people of all the States considered as one people. 

"If the majority should not rule, who would be the judge? 
Where is such a judge to be found? We should all be bound 
by the majority of the American people; if not, then the 
minority must control. Would that be right? Would it be 
just or generous? Assuredly not. I reiterate that the major- 
ity should rule," 34 * 

"... in what consists the special sacredness of a State? 
. . . If a State and a county, in a given case, should be equal 
in extent of territory, and equal in number of inhabitants, in 
what, as a matter of principle is the State better than the 
county? . . . On what rightful principle may a State, being 
not more than one-fiftieth part of the nation, in soil and popu- 
lation, break up the nation and then coerce a proportionally 
larger subdivision of itself, in the most arbitrary way ? What 

* Lincoln's Address at Steubenville, Ohio, February 14, 1861. 

96 



MR. LINCOLN'S DOCTRINE 97 

mysterious right to play tyrant is conferred on a district of 
country, with its people, by merely calling it a State?" 35 * 

"We shall again be able not to declare that 'all States as 
States are equal,' nor yet that 'all citizens as citizens are equal,' 
but to renew the broader, better declaration, including both 
these and much more, that 'all men are created equal.' " 3 ' 8 f 

"This sophism derives much, perhaps the whole, of its cur- 
rency from the assumption that there is some omnipotent and 
sacred supremacy pertaining to a State — to each State of our 
Federal Union. Our States have neither more nor less power 
than that reserved to them in the Union by the Constitution 37 
— no one of them ever having been a State out of the Union. 
The original ones passed into the Union even before they cast 
off their British colonial dependence ; 38 . . . Much is said 
about the 'sovereignty' of the States; but the word even is not 
in the National Constitution, nor, as is believed, in any of the 
State constitutions. 39 Originally some dependent colonies 
made the Union, and, in turn, the union threw off their old 
dependence for them, and made them States, such as they are. 
Not one of them ever had a State constitution independent of 
the Union. 40 ..." J 

In view of facts already presented, it must be either futile 
or unnecessary, more fully to canvass these statements. If 
they are correct, Mr. Lincoln was not a Constitutional Presi- 
dent of the United States, having been elected by much less 
than a majority of the people of those States. 

* Lincoln, in Indianapolis. Nicolay & Hay, Vol. Ill, p. 295. 

f At banquet in Chicago, December 29, 1856. 

$ Lincoln, July 4, 1861. Nicolay & Hay, Vol. II, pp. 61, 62. 



1—7 



CHAPTER VIII 

THE ETHICAL QUESTION INVOLVED 

"Surely," says old Sir Thomas Browne, "there goes a 
great deal of Conscience to the compiling of a history ; there is 
no reproach to the scandal of a Story; it is such an authentic 
kind of falsehood that with authority belies our good name to 
all nations and Posterity." 

Yet too much conscience is dangerous. 

Consider the case of casuistry of Father Aldrovand and 
Wilkin Flammock. Honest Wilkin, being in a very tight 
place, diddled certain Welshmen out of certain beeves. Con- 
sidering him as a "practical" politician, "confronted with a 
condition not a theory," (and if any "unpractical" man wishes 
a meaning put to the phrase, it means just what "art for art's 
sake" means), etc., a jury (of his own men) well fed up on 
the beeves, and hurrahing for the Welshmen's defeat, would 
undoubtedly have found for the defendant, without leaving 
their seats. 

In a case once almost as celebrated, of much later date and 
nearer home, Patrick Henry laughed the plaintiff out of court 
for daring to ask payment for some other beeves, which had 
been incorporated in good American soldiers. "But hark! 
what notes of discord are these which disturb the general joy, 
and silence the acclamations of victory — they are the notes 
of John Hook, hoarsely bawling through the camp, 'Beef, beef, 
beef! " And all that poor John got was the hook ; like Mr. 
Hampden in the ballad, "happy to escape so," without a pa- 
triotic garment of tar and feathers. 

In time of war truth had as well stay in her well ; even so ill- 
favoured a poor girl is liable in war to be roughly entreated. 
Yet, in truth, ill-favoured, ragged slut as she is, 

98 



THE ETHICAL QUESTION INVOLVED 99 

"L'eurent a l'instant tecogniie 
A ses habits tout dechires," 

Truth is most of all in danger after the fight is over. Father 
Aldrovand, being called upon to give thanks, cannot, hungry 
as he is (or rather was), condone Honest Wilkin's peccadillo 
on the ground that it was expedient, and eat his dinner without 
caring how it was come by. Honest Wilkin hits poor Truth 
a clout, and "Out of the way, wench !" The Reverend gentle- 
man must needs prove his love for her, — much indeed as 
Death loved Sin, and with the same fatal progeny. In the 
interests of morality, truth, and his more squeamish stomach, 
it is necessary for him that Honest Wilkin's act, far from be- 
ing a peccadillo, a venial sin, should be a virtue ; "a great moral 
law," indeed. To prove by the Scriptures that Welshmen were 
intended to be diddled, that Raymond Berenger was a fool 
(possibly a "traitor" and atheist) for refusing to break his 
compact with them, is a first necessity, a tonic, a pepsin, an 
aperitif, a chasse cafe, a grace before and after meals, without 
which his "conscience" will not let his stomach be at peace, 
any more than would the balsam of Fierabras that of poor 
Sancho. 

Frederick, "the Great" (was it not?) said: "When I want 
a province, I take it. I can always get a pedant to justify me." 

The process, as Montaigne describes it, still goes merrily on : 
"Je ne veulx pas croire qu'ils ayent rien change quant au gros 
du faict; mais de contourner le jugement des evenemens sou- 
vent contre raison a nostre advantage . . . ils en font mes- 
tier." e. g.: 

"In the decade preceding the Civil War, when the moral 
indignation of the people was roused by the hideous barbari- 
ties and political encroachments of slavery, one case arose 
which stands in our judicial records as a warning that the 
strongest constitutional or legal barriers cannot always stand 
against the settled moral convictions of a people. 41 In the case 
of Ableman v. Booth and United States v. Booth, Booth had 
been arrested and held on the charge of aiding the escape of 
a fugitive slave. While so held by the United States marshal, 



ioo SECESSION AND CONSTITUTIONAL LIBERTY 

he was released on a writ of habeas corpus by a judge of 
the Supreme Court of Wisconsin. He was subsequently 
indicted and convicted upon the same charge, and while under- 
going sentence of the United States court, was again released 
on writ of habeas corpus by the Supreme Court of the State. 
The cases were carried to the Supreme Court of the United 
States on writ of error, and gave occasion for one of the ablest 
and most permanently valuable decisions of Chief -Justice 
Taney. 

"I suppose no lawyer or statesman of standing would to-day 
undertake to defend the action or decisions of the court of 
Wisconsin on legal grounds. Those decisions were indeed 
without a shadow of support in law, and could never be de- 
fended except upon revolutionary grounds. They show im- 
pressively the dangers to every part of our political system 
involved in the protection afforded by the Constitution to that 
baleful and deadly foe to our national peace as well as to our 
great constitutional system and experiment, — warranting 
President Lincoln's brave and sagacious vaticination: 'This 
government cannot endure permanently half -slave and half- 
free.' . . . 

"The highest achievement of the English-speaking race is, 
I make no doubt, the subordination of all other powers and 
authorities to the power and authority of Law, — the enthrone- 
ment over all, the apotheosis, of that idea and fact which is 
the nearest approach, the most faithful echo which human 
ears ever catch, of the voice of God, not the voice of the peo- 
ple as heard at any given moment, but the voice of incarnated 
Reason and Truth — of Justice and Authority, — Law: 

" 'Sovereign law, that state's collected will, 
O'er thrones and globes elate.' " * 

How does Mr. Chamberlain reconcile his statement that 
"The highest achievement of the English-speaking race is, 
. . . the subordination of all other powers and authorities 
to the power and authority of Law, — the enthronement over 

* Daniel H. Chamberlain, "The State Judiciary," "Constitutional History 
of the United States as seen in the Development of American Law," N. Y., 
1890. 



THE ETHICAL QUESTION INVOLVED 101 

all, the apotheosis, of that idea and fact which is the nearest 
approach, the most faithful echo which human ears ever catch, 
of the voice of God, not the voice of the people as heard at any 
given moment, but the voice of incarnated Reason and Truth 
— of Justice and Authority, — Law," with his approving men- 
tion, "That the strongest Constitutional or legal barriers can- 
not . . . stand against the settled moral convictions of a 
people?" How is "law the voice of incarnated reason and 
truth" and yet opposed to "the settled moral convictions," etc. ? 

How are the "settled moral convictions of a people" to be 
made known excepting through their law, — "the voice of in- 
carnated Reason and Truth"? And of all forms of law no 
other can be so solemn and imperative as that Constitution, 
which according to Mr. Chamberlain, "protected a deadly and 
[therefore it may be supposed] baleful foe" to itself. Mr. 
Chamberlain, it is true, makes a distinction between this law 
(the expression of "the settled moral convictions of a people") 
and the "voice of the people as heard at any given moment." 
(Then the Constitution was only "the voice of the people as 
heard at a given moment," and that "moral indignation" 
which he so admires was "the settled moral conviction of a 
people"!) 

Let Mr. Lincoln's doctrine that "A majority held in re- 
straint by constitutional checks . . . and . . . changing 
easily with deliberate changes of popular opinion ... is the 
only true sovereign of a free people" be examined in this 
light. 

"Liberty belongs to defined rights, regulated interests, speci- 
fied duties, all determined in advance, before passions are ex- 
cited and selfishness engaged* prescribed in solemn docu- 
ments, and guaranteed by institutions which work imper- 
sonally without fear or favor. . . . Civil liberty must there- 
fore be an affair of positive law, of institutions, and of history. 
It varies from time to time, for the notion of rights is con- 
stantly in flux. The limiting line between the rights and duties 
of each man, up to which each may go without trenching on 

* Italics by B. S. 



102 SECESSION AND CONSTITUTIONAL LIBERTY 

the same rights and liberty of others, must be "defined at any 
moment of time by the constitution, laws and institutions of the 
community. People often deny this, and revolt at it, because 
they say that one's notions of rights and liberty are not set for 
him by the laws of the state. The first man you meet will un- 
doubtedly tell you that there are a number of laws now in 
force in the United States which he does not think are con- 
sistent with liberty and (natural) rights — I who write this 
would say so of laws restricting immigration, laying protective 
taxes, etc. But it is to be observed that behind the positive law 
existing at any time, there is the moral reflection of the com- 
munity which is at work all the time. This is the field of 
study, debate, and reflection, on which moral convictions are 
constantly being formed ; and when they are formed, they find 
their way into laws, constitutions, and institutions, provided 
that the political institutions are free, so as to allow this to 
take place . . . It is a constant phenomenon of all exag- 
gerated philosophers of the state, that they obscure this dis- 
tinction between public morals and positive law. The older 
abuse was to suppress public morals in the name of positive 
law ; the later abuse is to introduce public morals into positive 
law directly and immaturely." * 

Let this exposition be applied to the particular case. "It is 
to be observed that behind the positive law existing at any 
time, there is the moral reflection of the community which is at 
work all the time. This is the field of study, debate, and re- 
flection, on which moral convictions are constantly being 
formed; and when they are formed, they find their way into 
laws, constitutions, and institutions, provided that the political 
institutions are free, so as to allow this to take place." It is not 
believed that this statement of the relation of moral convic- 
tions to positive law can be successfully controverted. If, 
then, Mr. Chamberlain is correct, and "the strongest constitu- 
tional and legal barriers stood against the moral convictions 
of the people/' it must result that the political institutions of 
the United States were not free so as to allow this transmuta- 

. * Prof. Wm. G. Sumner, "Liberty and Responsibility," in "Earth Hun- 
ger." 



THE ETHICAL QUESTION INVOLVED 103 

tion of moral convictions into positive law to take place. But 
if they were not thus free, in a country in which the whole 
power resided both in theory and practice in the people, if they 
did not "change easily with deliberate changes" of a popular 
majority in the people, why were they not free? The answer 
reveals the sophism at the foundation of Mr. Chamberlain's 
moral doctrine: that same sophism found at the root of the 
whole anti-secession theory, — the sophism which asserts the 
United States to be politically one people, capable of acting by 
a majority of the whole in the same manner as the people of a 
single State would act. If this had been the fact, what power 
existed to prevent the "settled moral conviction of the people" 
from being transmuted into law? — to forbid "the majority 
from changing . . . with the ... changes of popular 
opinion?" 

Either, then, this was not "a people," or its majority did not 
have that settled moral conviction. This is a dilemma which 
no sophistry can evade. The only Constitutional power which 
could prevent complete freedom in a democracy such as that of 
the United States — the only "Constitutional checks and limi- 
tations" forbidding it to alter its laws in obedience to every 
whim of the majority, to each sound of "the voice of the peo- 
ple as heard at any given moment," was the Federative prin- 
ciple in the Constitution ; which, being a compact, "designed to 
unite great States," had, as such, provisions restrictive of this 
complete freedom of the majority, to enforce its "settled moral 
convictions" upon the people of States, whose people might 
entertain diametrically opposed "settled moral convictions." 
This is, or was, indeed, the praise of the Constitution, — the 
feature through which its creators thought to procure its en- 
durance. There was then no question of "the settled moral 
convictions of a people'' for the very good reason (among 
others) that (Constitutionally) there was no such people to 
have a "settled moral conviction." 

To repeat : if one people, it had the power freely to trans- 
mute any settled moral (or immoral) conviction into positive 
law ; if, then, it had a "settled moral conviction" which it was 
unable constitutionally to transmute into positive law, it could 



104 SECESSION AND CONSTITUTIONAL LIBERTY 

not have been one people. But, according to Mr-. Chamberlain, 
it had the conviction and did not have the (Constitutional) 
power. To the contrary, it had to break Constitutional bar- 
riers in order to its exercise ; — "the strongest constitutional or 
legal barriers cannot stand against the settled moral convic- 
tions of a people." Therefore it was not one people. But, if 
not one people, what becomes of "Mr. Lincoln's brave and 
sagacious vaticination," majority doctrine, etc.? What be- 
comes of the moral, — let alone Constitutional, — grounds upon 
which he waged war against the Southern States? 

At this date and in this connection it is not thought neces- 
sary to take issue at length with Mr. Chamberlain's "hideous 
barbarities," etc. Yet, having quoted it, a passing note must 
be made, not to seem to allow the charge to pass by default. 
As so used, the expression colours the whole community to 
which it was applied. That such barbarity not only did not 
so characterize the slave regime in the South, that it was not 
even really believed by the North so to do, may be sufficiently 
proved by two general reasons, without entering upon detail. 

As regards the first proposition, the capabilities of the negro 
for sudden excitement and bloody revenge have been suffi- 
ciently proved by historical events in San Domingo and in 
many other instances ; yet this people — impressionable, as they 
have always been; semi-savage in a large proportion ; subjected 
through years to a systematic and most violent propaganda of 
revenge against their masters, — a propaganda which deliber- 
ately appealed to their strong animal characteristics, — when 
their masters' power was first menaced and then struck down, 
not only did not avail themselves of their opportunity to avenge 
their wrongs but in great numbers took upon themselves the 
protection and support of those who had once owned them. 
Such action was equally to their own credit and to that of the 
treatment they had received as slaves. 

In regard to the second proposition, suppose that a "people 
of high intelligence" and "great moral ideas" neighbour on a 
people who take delight in the infliction of physical torture, the 
perpetration of "hideous barbarities," is it possible to believe 
that the former would wish to incorporate in itself a body of 



THE ETHICAL QUESTION INVOLVED 105 

people of this red Indian civilization ? — would refuse to permit 
such to live apart, even when such refusal meant prolonged 
war? Surely not. To incorporate a people destitute of ordi- 
nary human feelings with another so superior, in a republic 
where the votes of the one would have the same operative 
force as those of the other, would be a political madness in the 
former, which ordinary common sense and sanity, let alone a 
high degree of civilization and intelligence, would shun as 
a kind of political suicide. Such a union would indeed be a 
house divided against itself. Far from fighting to perpetuate 
a union so unnatural, the former would fight to eject the lat- 
ter. The people of the United States are not perhaps of the 
high intelligence and great moral ideas which Judge Chamber- 
lain bestows upon them, but they have very readily refrained 
from incorporating with their own civic body the Indian. In 
fact the dilemma is apparent that if a people gave such indi- 
viduals the vote in a republic, that people could not be one of 
high intelligence and great moral ideas. Either then the 
North did not really believe that the South was guilty of 
"hideous barbarities,' ' or the North was not a people of high 
intelligence and great moral ideas. Reversing the proposition : 
If the North did not believe in those "hideous barbarities," 
which it assumed as a basis of its action, still less could that 
action be that of a people of "great moral ideas." 

The practical operation of this dilemma may surely be seen, 
under less powerfully influential motives (in a people of high 
moral ideas) than should be afforded by "hideous barbarities," 
in the case of legislation against classes and races of immi- 
grants, 

A recent writer has put the case very neatly in another way, 
as follows: 

"Our detractors have convicted themselves of the slanders 
they have uttered by taking the Southern slave from the cot- 
ton fields to the ballot box and vesting him with all the privi- 
leges of an American citizen. If the institution of slavery has 
so tutored the negro that immediately his bonds are loosened, 
he is qualified for the privileges of the ballot box, what a civi- 



\ 



io6 SECESSION AND CONSTITUTIONAL LIBERTY 

lizing tendency that institution must have had. Jf on the con- 
trary that institution has kept him in utter ignorance of moral 
and Christian duty and made him the cringing, degraded 
creature he has been represented, what a monster must be he 
who proposes to vest in the untutored savage the power of 
governing others." * 

"A case was now presented which grew out of the Fugitive 
Slave law of September 18, 1850. With the heat of the de- 
cision in the Dred Scott case still glowing, the Supreme Court 
of Wisconsin undertook to pronounce this Act of Congress 
unconstitutional and void, and resisted, so far as it could, its 
administration by the Federal authorities. The opinion of the 
Chief- Justice, apparently adopted by all the judges, reviews 
the whole subject at length, and upholding the constitutionality 
of the Act of Congress, lays down certain principles which 
should have received the assent of all law-abiding citizens. 
But the crisis was rapidly approaching. It was held by the 
court, that the process of a State court, or judge, had no au- 
thority beyond the limits of the sovereignty conferring the 
judicial power. Hence, a habeas corpus issued by a State 
court, or judge, had no authority within the limits of sover- 
eignty assigned by the Constitution of the United States. 
When such a writ of habeas corpus is served on a marshal or 
other person having one in custody under the authority of the 
United States, it is his duty, by a proper return, to make 
known the authority under which he holds the person de- 
tained ; but he is bound to regard and execute the process of 
the United States and not to obey the process of the State 
authorities. 

"No one can well question the soundness of these proposi- 
tions, but the voice of the law was no longer heard; and in 
this connection we shall notice another case occurring a little 
later, when the fires of war were already appearing upon the 
horizon. I refer to the case of Commonwealth of Kentucky 
vs. Denison, in which Chief Justice Taney delivered the opin- 
ion of the court, announcing the following propositions : 

. *"The Heritage of the South," by Jubal A. Early, p. 114; 1915. 



THE ETHICAL QUESTION INVOLVED 107 

" Tn a suit between two States, the Supreme Court has 
original jurisdiction, without further Act of Congress regu- 
lating the mode in which it shall be exercised. Suit by, or 
against, the governor of a State in his official capacity, is a 
suit by or against the State. A writ of mandamus 
does not issue in virtue of any prerogative power, and is noth- 
ing more than an ordinary action at law in cases where it is 
the appropriate remedy. The words "treason, felony, or other 
crime," in the second clause of the second section of the fourth 
article of the Constitution, include every offense forbidden 
and made punishable by the laws of the State where the of- 
fense is committed. It is the duty of the executive of Ohio, 
upon demand of the governor of Kentucky and the production 
of a certified copy of the indictment, to deliver up an alleged 
criminal to the governor of Kentucky. This duty is merely 
ministerial. But no law of Congress can compel a State officer 
to perform such duty/ 

"There is a tone of almost pathetic dignity in that portion 
of the opinion in which it is asserted that the performance of 
the duty in question was left to depend upon the fidelity of the 
State Executive to the compact entered into by the other 
States; when it was believed that a sense of justice and of 
mutual interest would insure the faithful execution of the 
clauses of the Constitution after it became the fundamental 
law of the land. . . . 

"The Act of Congress of 18th Sept., 1850, commonly called 
the Fugitive Slave Law, . . . Notwithstanding that this law 
was obviously in the strict line of the constitutional provision 
upon the subject ... it met with strong opposition in its 
passage through the two branches of the Federal legislature, 
and after its passage, in its execution in many of the Northern 
States, In the State of Pennsylvania, in particular, it gave 
rise to a trial for high treason in a case where it was con- 
tended that there was a concerted plan to prevent its execution. 

"In truth, the subject lay beyond the domain of legislative 
or judicial action. The feeling is so deep-seated in the hearts 
of men to comment upon unfavorably, and to prevent if pos- 
sible the exercise of, all authority distasteful to their passions 



io8 SECESSION AND CONSTITUTIONAL LIBERTY 

or their prejudices, that it is impossible to reason with it, or 
even to contend against it, except by the exercise of physical 
force. Especially is this so in free countries, and particularly 
in one where the general level of intelligence is high, and the 
means for concerted action abundant, by reason of the ability 
for the almost instantaneous propagation of the thoughts and 
opinions of the general mass. In vain shall you attempt to ap- 
peal to the reason or patriotism of men thus aroused. You 
may demonstrate with unerring truth that the Constitution is 
incapable of more than one construction upon the point in 
question, and you may show with the clearness of the noonday 
sun that this construction favors the obnoxious practice. You 
may further prove from the history of the times, with an 
accuracy which admits of no challenge, that the compact by 
which the several States were fused into one united body 
would never have taken place without the concession which is 
found enacted into words in the instrument of union. You 
may talk of duty, justice, fairness, submission to the laws; 
but you talk against the wind in doing so. When men's pas- 
sions are aroused they no longer reason. 42 Passion is at one 
end of the line, reason at the other, and the latter is always out- 
weighed by the former. Men simply rely upon their feelings 
as their principle of action; and especially do> they do this 
when they can indulge in the luxury of gratifying these feel- 
ings without expense to their pockets. Adam Smith wrote, 
nearly a hundred years ago, that the resolution by which our 
ancestors in Pennsylvania set at liberty their negro slaves, 
must satisfy us that their number then could not have been 
very great in that State, and before making this statement he 
had demonstrated 'that the work done by slaves, though it 
appears to cost only their maintenance, is in the end the dear- 
est of any kind of labor.' 

"The principle to which the great philosopher of modern 
times attempted to reduce all the motives and actions of human 
conduct, that of UTILITY, is always the safest, and indeed 
the only guide to appeal to in the resolution of questions of 
this kind. 43 If the slaveholding States had believed that in 
the long run the Union was more advantageous to them, even 



THE ETHICAL QUESTION INVOLVED 109 

without the practical carrying into effect of the provision of 
the Constitution in question, they should not have attempted 
the enforcement of a provision so unpopular in the North. 
Had the people of the non-slaveholding States regarded the 
value of the Union as superior to the enforcement of an un- 
popular provision, they would readily have acquiesced in sub- 
mission to its requirements. The fault on both sides was a 
blunder of proportion in their moral and mental vision. The 
inestimable advantages of the Union not being brought in- 
stantly to their apprehension, were relegated to distant con- 
sideration, or rather were placed out of view altogether." * 

Mr. Biddle's statement that "The principle ... of utility 
is always the safest, and indeed the only guide to appeal to in 
the resolution of questions of this kind . . . The fault on 
both sides was a blunder of proportion in their moral and 
mental vision," etc., is true, if "utility" is allowed to connote 
the preservation of the distinctive and highest qualities of hu- 
manity. But this is obviously just what it does not mean, 
since in this sense it would have no bearing on his argument. 
This being so, a safer guide may lie, one would fain hope, in 
the principle of honour, — in keeping engagements faithfully 
on the one hand, and, not less, in resenting their breach on 
the other. 

The poets are sometimes the safest reasoners in political 
matters. 

"What constitutes a state? 
Not high rais'd battlements or labour'd mound 
Thick wall or moated gate ; 

No: — men, high-minded men. 

Men, who their duties know, 
But know their rights, and knowing dare maintain, 
Prevent the long-aim 'd blow 
* * * * 

These constitute a state 
And sov'reign law, that state's collected will." 

* George W. Biddle, "Constitutional Development in the United States 
as influenced by Chief Justice Taney" ; "Constitutional History of the U. S. 
as seen in the Development of American Law," N. Y., 1890. 



no SECESSION AND CONSTITUTIONAL LIBERTY 

Sir William Jones, legislator and lawyer, as -well as poet, 
thus makes the will to maintain rights under the law an in- 
tegral part of the duty of a citizen, — as, indeed, all law ulti- 
mately depends upon that willingness for its sanction. When 
Shakespeare advises "Greatly to find quarrel in a straw when 
honour's at the stake," his psychology is infinitely more cor- 
rect than Mr. Biddle's, from the viewpoint of "utility" itself. 
It is not a false instinct which admires Hampden's refusal to 
pay an unfelt shilling from an ample income for an improper 
tax, though he might thereby have avoided suffering and 
danger. No schoolboy but knows that, if he chooses Mr. 
Biddle's "utility" as "his guide to appeal to," he will be the 
butt of every bully, — that one shameful submission will lead 
to another yet more shameful. 

To give up one's rights is to invite further aggression. "En 
nous acculant et tirant arriere nous appellons a nous et at- 
tirons la ruine, qui nous menace," says Montaigne. Nor has 
such doctrine ever been the motive of action of this country 
(or of any other that has survived as such long enough to 
have a place in history). "Did cowardice, did injustice, ever 
save a sinking state? Did any man, by giving up a portion of 
his just right, because he had not courage to maintain it, ever 
save the residue? The insolence of the aggressor is usually 
proportioned to the tameness of the sufferer." 44 * 

Jackson in his message of 1833, said : 

"Peace and friendly intercourse with all nations are as much 
the desire of our government as they are the interests of our 
people. But these objects are not to be permanently secured 
by surrendering . . . rights, or permitting . . . solemn 
treaties . . . to be abrogated or set aside." 

"The superior power may offer peace with honour and with 
safety. Such an offer from such a power will be attributed to 
magnanimity. But the concessions of the weak are the con- 
cessions of fear. When such a one is disarmed, he is wholly 
at the mercy of his superior; and he loses forever that time 

* Fisher Ames. 



THE ETHICAL QUESTION INVOLVED in 

and those chances, which, as they happen to all men, are the 
strength and resources of all inferior power." * 

Had "utility" only, in the sense in which Mr, Biddle uses 
it, been involved, the American Revolution had never been 
fought. 45 Contrast Mr. Biddle's principle of action with that 
of the South : "Look here, upon this picture, and on this 1" 
which is best fitted "to give the world assurance of a man?" 

"Aye! but the Virginian made slavery the touchstone and 
the test in all things whatsoever, State or Federal. Truly he 
did, and why? 

"This button here upon my curl is valueless, whether for 
use or for ornament, but you shall not tear it from me and 
spit in my face besides ; not if it cost me my life. And if your 
time be passed in the attempt to so take it, then my time and 
my every thought shall be spent in preventing such outrage. 
Let alone, the Virginian would gladly have made an end of 
slavery, but, strange hap ! malevolence and meddling bound it 
up with every interest that was dear to his heart — wife, home, 
honor — and by a sad providence it became the midmost boss, 
the very centre of that buckler of State rights which he held 
up against the worst of tyrants — a sectional majority." f 

When Mr. Biddle sustains that reason, justice, and patriot- 
ism, adherence to well-understood compact, and so on, cannot 
be relied upon, especially in free people of a high level of in- 
telligence, to' guide their actions, he asserts nothing less than 
that men are unfit for self-government, and Constitutions use- 
less. It may well be true ; 

"It's human natur. P'raps 'tis so. 
Oh! isn't human natur low." 

But it is a poor justification for a party which claims great 
moral ideas as its raison d'etre. 

"The makers of constitutions designed to unite great states 
and to last for centuries can foresee and provide for but a 

* Burke's Speech on Conciliation of the Colonies, 1775. 
f "The Old Virginian Gentleman," by George W. Bagby. 



ii2 SECESSION AND CONSTITUTIONAL LIBERTY 

small portion of the difficulties which may come. When 
emergencies unforeseen arise, the officers of government may 
look in vain to the source of their powers to see what should 
be done. But the government must be administered. The 
state must be preserved. Though a nation may have been 
formed by a written constitution, yet time will knit it to- 
gether by a thousand ties stronger than those of any compact. 
And no people worthy of the name will allow itself to be 
destroyed, because of constitutional restraints. The thing 
which seems necessary for self-preservation will be done, 46 and 
such justification found, as circumstances permit. Constitu- 
tional provisions will be strained, if necessary, and meanings 
discovered which would never have been thought of in quiet 
times." * 

Mr. Kent's doctrine, like that of Mr. Biddle et al., is extra- 
Constitutional. The question to which such teachings really 
tend is not whether such and such action is in consonance with 
the provisions of the Constitution ; it is whether a Constitution 
(or any other agreement) is binding upon the parties thereto. 

What kind of a "higher law," a "settled moral conviction,' , 
is that which cannot be frankly announced or defended, — 
which "leaves compact thinking behind" ; and basing itself 
upon the denial of historical fact, has, when the falsehood is 
unmasked, finally to be justified by an ethic which excuses the 
breaking of most solemn compacts on the one side, and blames 
the resenting this breach of faith by the other? Compared 
with it, the shape of Proteus was "settled." The Duchess's 
baby was its archetype: "At first Alice could not hold it 
securely, when at last she found out the way, by holding it 
firmly by the left ear and right foot, she found that it was not 
a baby at all but a pigling." 

"Woman to the waist, and fair (it seems) ; 
But ending foul in many a scaly fold 
Voluminous and vast; a serpent arm'd 
With mortal sting." 

* "Constitutional Development as influenced by the Decisions of the 
Supreme Court since 1865," by Charles A. Kent. "Constitutional History 
of the U. S. as seen in the Development of American Law" ; N. Y., 1890. 



THE ETHICAL QUESTION INVOLVED 113 

To hang on to one's own share of the profits, while calling 
on one's partner to live virtuously and give up his share of the 
bargain, is not merely "an alliance of Blifil with Black George, 
of the Puritan with the blackleg"; it exemplifies the not un- 
common spectacle of the former sanctimoniously swindling 
the latter out of his share in the common plunder. 

Honesty is the base of any conviction worth having, — ex- 
cept a conviction in the criminal court. If the trade shocks 
you, give up your profits in the business, and break the part- 
nership; say to your wicked partner, "Get out! Go in peace." 
To insist on continuing the partnership and sharing in the 
profits, while you withdraw the capital you have put in, is 
not so uncommon either in daily life or history that we need 
praise it as a virtue to take precedence of constitution and 
laws, until we list Tartuffe and Hudibras among our heroes, 
and think it praiseworthy to 

"Compound for vice we are inclined to 
By damning that we have no mind to." 

So far the ethical question is treated from the point of- view 
of Mr. Buchanan, when he told the Northern States that "If 
slavery was a crime it was no more their crime than was the 
slavery of Brazil" ; of Mr. Webster, when he wrote to John 
Taylor : "You have no more right to say that slavery ought 
not to exist in Virginia than a Virginian has to say that 
slavery ought to exist in New Hampshire. This is a question 
left to every State to decide for itself, and if we mean to keep 
the States together we must leave to every State this power of 
deciding for itself." * 

And from this point of view it must appear that they vio- 
lated the essential principle of freedom, which is common 
honesty. 

"It must not be forgotten, that compact express or implied 
is the vital principle of free Governments as contradistin- 
guished from Governments not free ; and that a revolt against 

* Letter of 1852. 
1—8 



ii4 SECESSION AND CONSTITUTIONAL LIBERTY 

this principle leaves no choice but between anarchy and des- 
potism." * 

"We shall be unworthy to be ranked among civilized 
nations if we do not consider treaties in this view . . . 
Vattel . . . says, 'There would be no more security, no 
longer any commerce between mankind, did they not believe 
themselves obliged to preserve their faith, and to keep their 
word/ . . . " f 

These United States are just now engaged in a very stren- 
uous attempt to confute the results of such arguments as the 
following by Herr Treitschke (who, like Count Hermann, is 
"a very respectable man — for a German"), viz., "Treaty rights 
are never absolute rights. They are of human origin, there- 
fore are imperfect and variable. There are conditions in which 
they do not agree with the truth of things. In such cases in- 
fringement of the right seems morally justified." (I quote 
translation, not having seen original.) 

But if this differs in any respect, save in being an abstract 
proposition of which they are concrete examples, from the 
doctrines here laid down by eminently respectable Americans, 
such as Messrs. Adams, McLaughlin, Kent, Chamberlain, etc., 
the writer is unable to perceive it. 

But let the same question be considered even from the 
assumption that the people of the United States were one 
people, and the conclusion can be scarce more favourable to the 
action of the Northern States. This becomes apparent from 
two considerations : First, as to the propriety of the applica- 
tion of the spirit of humanitarianism as manifested; second, 
as to its sincerity. 

The propriety of one individual seeking to impose his idea 
of right upon another (and a fortiori is the teaching applicable 
to nations or communities), not alone is opposed to any ra- 
tional conception of liberty, 47 J but is looked upon with sus- 
picion and reprobation alike in the moral law of the great 

* Madison, in "Madison's Works," edited by G. Hunt, Vol. IX, p. 605. 
t C. C. Pinckney, in South Carolina Ratifying Convention. 
t Vide Sumner ; ante. 



THE ETHICAL QUESTION INVOLVED 115 

faiths and in the teaching of profane moralists: The Chris- 
tian canon ordains : "Thou hypocrite, cast out first the beam 
out of thine own eye," etc., etc. ; the Buddhist faith says: 

"Easy to see the faults of others, 
But hard one's own faults to see; 
His neighbor's faults as chaff one winnoweth, 
But hideth his own as a cheating gambler his die. 

* * * * 

Because he carrieth the right by force 
A man is not therefore Just." * 

The noblest ethical doctrine of antiquity (perhaps there are 
some who think that no nobler has been attained by man), as 
developed in the thoughts of Marcus Aurelius (who, if any 
one, by official station might well have deemed himself his 
brother's keeper) repeatedly admonished itself : "Does an- 
other do wrong? The wrong is his own." — "Another's error 
— let it lie." — "If he did wrong, with him lies the evil. Sup- 
pose after all he did not." — "You cannot even be sure if they 
are doing wrong; for many actions depend upon some sec- 
ondary end. In short, one has much to learn before one can 
make sure and certain what another's action." — "He gives me 
the impression of wrongdoing, but, after all, how do I know 
whether it is wrong?" — "If a man mistakes, reason with him 
kindly and point out his misconception. If you cannot prevail, 
blame yourself, or no one." f 

"Mind your own business," homely as it sounds, is indeed 
"a great moral law" ; so great that were it but "a settled moral 
conviction" of mankind, half our self-created miseries would 
disappear. According to Lord Acton, its adoption might 
transform the world. 48 It is indeed no exaggeration to say 
that until this "great moral law" is acknowledged, freedom is 
at best toleration, not principle, — is at most recognized in 
certain of its phenomena, not in its essence. Neither "freedom 
of speech," nor "freedom of thought," nor any other "free- 
dom," is logically consistent with a recognized right of one 
individual to overtly interfere in the concerns of another 

* "Hymns of the Faith," translated by Albert J. Edmunds. 
f Rendall's translation. 



n6 SECESSION AND CONSTITUTIONAL LIBERTY 

against that other's will, excepting for cause of immediate 
injury to himself, resulting from that other's act ; it is equally 
inconsistent with a similar moral right of one people in regard 
to other people. Most of all, perhaps, it is inconsistent with 
the moral right of a majority of a people over the minority. 
When this happens, freedom in any one thing is but a pale 
simulacrum of the reality, and is recognized inconsistently 
with logic. "The settled moral convictions of a people," if 
accepted as justification for aggressions upon the "settled 
moral convictions" of others, amply justified the Inquisition, 
the crusade against the Albigenses, as they have justified 
every despotism, every persecution, every breach of faith ever 
existent and committed. The one principle which utterly for- 
bids all these things is the principle that any individual in any 
community, or any community in regard to others, has the 
right to pursue his own wishes, and judge of their righteous- 
ness, so long as those wishes do not directly, obviously, and 
unjustly interfere with those of his neighbour. The whole 
trend of "civilization," in so far as it has added to human 
happiness, has been but a development toward this point. In 
comparison to this all material improvements are slight; and 
all that the world has gained is dependent upon the observance 
of this principle. Let A first employ his "settled moral con- 
victions" on curing his own ills. Be sure he will find enough 
to occupy him. 

When A, instead of so doing, sets his "settled moral convic- 
tions" to work on B's business, his motives are always suspect, 
— though he set his life on the stake, they are not the less 
suspect; they are more to be suspected; and justly so. In 
such case always, — at least, in the case of nations, — one may 
find motives of animosity, or the desire for gain, in company 
with the moral ideas put forward as the reasons for ag- 
gression. 

Human nature, in bulk, does not sacrifice itself from unal- 
loyed altruism. Even in individuals such fanaticism of virtue 
is doubtfully admirable. 



THE ETHICAL QUESTION INVOLVED 117 

'^'immoderation, vers le bien mesme, si elle ne m'offense, 
elle m'estonne, et me met en peine de la baptizer. Ny la mere 
de Pausanias, qui donna la premiere instruction, et porta la 
premiere pierre, a la mort de son fils : ny le dictateur Pos- 
thumius qui feit mourir le sien, que l'ardeur de jeunesse avoit 
heureusement poulse sur les ennemis un peu avant son reng, 
ne me semble si juste, comme estrange; et n'ayme ny a con- 
seiller ny a suyvre une vertu si sauvage et si chere." 49 * 

"Take up the white man's burden" was an old song in 
Plutarch's time: ". . . if they could not have quenched 
their unsatiable desire withal, they had an honest culler to have 
cloaked their ambitious desires, if it had beene but to have 
brought the barbarous people to a civill life." f 

To say this is not to inscribe upon one's shield the device : 



'Of all my mammy's chillun, 
I loves myself the best; 
As long as I'm perwided for, 
The debbil take the rest." 



It is not to deny the obligation of humanity. 

Two courses of action lay open to the anti-slavery States, 
had that action been truly and entirely "a great moral law" 
guided by the unselfishness of love; had not the selfishness of 
hate and greed been a strong ingredient of their motive. 
Either of these might fairly have been dignified with the 
praise appertaining to high and pure ideals, even by those who 
might have disputed their wisdom. First, they might, by co- 
operating with the antagonists of that institution in the South- 
ern States, who were neither few nor weak, and shunning 
domineering, threatening antagonism (the effects of which are 
so vividly stated by Mr. Bagby 1 and other Southern writers, 
and pointed out by Mr. Webster), in all probability, have 
brought slavery to an end long before that consummation was 
reached ; and have so brought it to an end without the convul- 
sion and griefs of war and the long train of Constitutional ills 

* Montaigne, on Moderation. 

f "Life of Pompey," North's translations of the "Lives." 

$ Vide ante, p. in. 



n8 SECESSION AND CONSTITUTIONAL LIBERTY 

therefrom arising to afflict themselves equally witfi the South- 
ern States. 50 

Failing this, if, from a lack of understanding of the Con- 
stitution, they had considered slavery as a crime in which they 
were co-partners through that instrument, they might have 
themselves left that bond. But when they neither would do 
this nor allow the South to do so, when they insisted on their 
right to break their part of the bargain, insisting at the same 
time upon the duty of the South to go on paying the price 
stipulated for their observance of that bargain, the idea that 
such action can be called "a great moral idea" is surely a 
burlesque on morals, if honesty is an essential part of morality. 

When Mr. Buchanan told the non-slaveholding States that 
if slavery was a crime it was no more their crime than was 
the crime of slaveholding among the Brazilians, he so spoke in 
accordance with fact. When early Pennsylvania friends ad- 
vocated the secession of the non-slaveholding States in order 
not to be concerned in the guilt of slavery; when Mr. Garri- 
son spoke of the Constitution as a compact with death and a 
covenant with Hell, and advocated the same doctrine, — what- 
ever their wisdom, they may fairly be said to have been actu- 
ated by a "great moral law." They did not "take up new 
philosophic grounds" but admitted the facts of the Constitu- 
tion, and prepared to forego its advantages, to clear themselves 
of what they considered its sin. 

But, remembering how New England, by her bargain with 
Georgia and South Carolina, fastened slavery and the tariff 
for "protection" upon the United States, can it be denied that 
she forewent the bargain for which she prostituted herself, 
while retaining with a death grip the price of her dishonour? 
Judges of criminal courts are familiar with the practice of this 
"great moral law." 

In fact, the South in its doctrine of secession was but fol- 
lowing the precedent of a well-known decision in a similar 
case of that celebrated governor who "put" the island of Bara- 
taria "on the map" : "Andad mucho de enhoramala. Andad 
churrillera, desvergonzada y embaidora." 

Montesquieu had stated its principle of action to be the most 



THE ETHICAL QUESTION INVOLVED 119 

eligible one: "Le quatrieme acte de justice, qui doit etre le 
plus frequent, est la renonciation a l'alliance du peuple dont on 
a a se plaindre." * 

Honest Sancho's decision, however, was reversed by the 
War; with it went the doctrine that "the people have a right 
to abolish their government when it is perverted to their in- 
jury." The principles "that compact is the vital principle of 
free Governments: a revolt against this principle leaves no 
choice but between anarchy and despotism, " and "that each 
party (I e., State) has the right to construe this compact for 
itself," have been superseded by "a majority should rule : a 
revolt against this principle leaves no choice but between 
anarchy and despotism," and a great moral law, that each 
individual of that majority is to construe the laws made by it 
for himself. 

*"Lettres Persanes," xcvi. 



APPENDICES 



APPENDIX i 

{Page 14) 

"Communities possessed of sufficient knowledge to dis- 
criminate between liberty and slavery, have uniformly laboured 
to invest governments with a portion of power sufficient to 
secure social happiness, but insufficient for its destruction. 
The United States understood the discrimination, and in the 
formation of the federal government endeavoured, by limita- 
tions and prohibitions, to reserve and secure as many of their 
individual rights as might be retained without defeating the 
end of providing for their common interest. The two prin- 
ciples of a division or a concentration of power, are the ad- 
versaries contending for preference. Every government must 
be of one or the other description. An absolute supremacy 
in one, belongs to the concentrating principle, like an absolute 
supremacy in one man. Hence it has happened that an aristo- 
cratical or representative body of men, exercising supreme 
power, has been as tyrannical, or more so, than a single despot. 
The United States saw that any geographical interest, if in- 
vested with supremacy by the establishment of a consolidated 
national government, would oppress some other geographical 
interest ; and made a new effort to avoid this natural malignity 
of a concentrated supreme power, though lodged in the repre- 
sentatives of the people. . . . Accident sometimes directs us 
to valuable discoveries; but though our division into states 
induced us to consider the hostile principles of power concen- 
trated or divided, in a geographical light, yet our decision was 
rather the result of an improvement in political knowledge, 
matured by reflection and experience, than casual. The dis- 

120 



APPENDIX i 121 

quisitions produced in resisting the supremacy of the British 
parliament had shed volumes of light upon the subject; the 
people had imbibed convictions from critical examinations of 
history and of moral rights ; and a profound consideration was 
bestowed upon the rival principles in the convention/' * 

"Is it enthusiasm or reason which causes me to behold the 
finger of God conducting the United States into a situation 
happily contrived to try and place at rest forever, the doubt, 
whether human nature is able to maintain a fair, free, mild, 
and cheap government? No other people ever were, or ever 
will be in so good a situation to settle this question affirma- 
tively; and their practical testimony will therefore be consid- 
ered as conclusive. A great nation was made to nurture them 
up to independence. A despotic government was made an 
instrument towards effecting it. Their soils and climates 
bestow subsistence and energy, without possessing the exuber- 
ant fertility or alluring softness, by which conquerors are in- 
vited and the mind is enervated. They cover the largest space 
of the whole world, in which one language is spoken ; so that 
ideas may be exchanged, prejudices encountered, and opinions 
examined, by one easy, rapid and familiar mode of communi- 
cation throughout all their territories. A surprising concur- 
rence of circumstances excluded orders and exclusive privi- 
leges; and the experience of two centuries taught them that 
they could do without these remnants of barbarous ages, and 
instruments of civilized tyranny. Various sects of Christians 
were wafted into them, without being actuated by the intention 
of establishing religious freedom, which yet sprung out of 
this circumstance without man's agency, except as the humble 
instrument of an overruling providence. Had all emigrants 
been of one faith, this half of human liberty would probably 
have been lost forever. Apparently, accident also produced a 
division of States, not less efficacious in favour of civil liberty, 
than are different sects in favour of religious. The wonderful 
concurrence of circumstances for effecting both ends, admon- 
ishes us to behold the division into States as also the work of 

* John Taylor, of Caroline, "New Views on the Constitution," p. 239; 
1823. 



122 SECESSION AND CONSTITUTIONAL LIBERTY 

providence. We have been taught that religion flourishes best, 
without oppressing the people by expensive establishments, as 
if to disclose to man the next great truth, that civil liberty does 
not require them. Make religion rich, and she becomes the 
patron of vice. Let a government become expensive, and it 
becomes the patron of ambition and avarice. In neither case 
can self-government exist, because both are founded upon a 
supposed necessity, that men must be robbed of their property 
to preserve social order; and this policy invariably terminates 
in despotism. Providence seems to have shielded us against 
it, by producing the division of religious sects, and of a vast 
territory into separate States; and as if still more securely to 
protect us against the endless pretext for exposing nations to 
enslaving privileges and impoverishing expenses (drawn from 
the contiguity of powerful governments), so often used to 
destroy both religious and civil liberty ; it has blessed us with a 
geographical position, apparently, that our understandings 
might have the fairest opportunity to detect impositions 
framed with national antipathies, but directed against private 
property; and increased our population, so as to place us be- 
yond the reach of fear. In these circumstances I behold a 
miracle, worked for the salvation of liberty, and creating an 
awful responsibility on the people of the United States. They 
seem to have been selected to evince the capacity of man for 
sustaining a fair and free government; and if by their failure, 
with such preeminent advantages, they shall renounce the 
favours of heaven, and consign a whole world of endless gen- 
erations to the tyranny of expensive governments, they will 
be reprobated as another infatuated and rebellious people, who 
have rejected benefactions visibly flowing from an Almighty 
source. 

"The commissions to overturn political idolatry thus en- 
trusted to the United States, like that to overturn religious 
idolatry entrusted to the Jews, requires only that portion of 
sagacity, sufficient to discover a fact, of universal notoriety, 
incapable of contradiction, and acknowledged by every honest 
man, learned or unlearned. It is, that no species of property 
transferring policy, past or existing, foreign or domestic, ever 



APPENDIX i 123 

did or ever can enrich the laboring classes of any society what- 
ever; but that it universally impoverishes them. To this fact 
not a single exception appears in the whole history of man- 
kind. ,, * 

"The opportunity, providentially given us, of forming plans 
of government on the most rational, just, and equal principles, 
has been altogether unparalleled. 'I confess, — said a sensible 
and patriotic Divine (President Witherspoon), in the year 
1775, and one who, the year following, signed his name in 
Congress to the DECLARATION OF AMERICAN INDE- 
PENDENCE, — T confess I have always looked upon this 
with a kind of enthusiastic satisfaction. The case never hap- 
pened before since the world began. All governments we have 
read of in former ages were settled by caprice or accident, by 
the influence of prevailing parties or particular persons, or 
prescribed by a conqueror. Important improvements have 
indeed been forced upon some constitutions by the spirit of 
daring men, supported by successful insurrections. But to see 
a government, in large and populous countries, settled from 
its foundation by deliberate counsel, and directed immediately 
to the public good of the present and future generations, while 
the people are waiting for the decision, with full confidence 
in the wisdom and impartiality of those to whom they have 
committed the important trust, is certainly altogether new. 
We learn, indeed, from history, that small tribes, and feeble 
new settlements, did sometimes employ one man of eminent 
wisdom to prepare a system of laws for them. Even this was 
a wise measure, and attended with happy effects. But how 
vast the difference! when we have the experience of all ages, 
the history of human societies, and the well-known causes of 
prosperity and misery in other governments to assist us in the 
choice/ " f 

"Many nations, both ancient and modern, have had the 
glory of acquiring and for some time of preserving liberty by 

*John Taylor, of Caroline, "Tyranny Unmasked," pp. 345-348; Wash- 
ington, 1822. 

t Abiel Holmes, Sermon, February 19, 1795, pp. 9-10; Boston, 1795. 



124 SECESSION AND CONSTITUTIONAL LIBERTY 

the most noble and virtuous exertions. But America, I be- 
lieve, furnished the first instance of a number of powerful and 
respectable States, impressed with the highest sense of liberty, 
voluntarily relinquishing large portions of power which they 
separately enjoyed, for the sake of forming a more perfect 
union for their future welfare. The success hath hitherto ex- 
ceeded the most sanguine expectations. God grant that no 
subsequent disappointment may weaken the effect of so mag- 
nanimous an example." * 

"When we were at liberty to form a government as we 
thought best, without regard to that or any theoretical prin- 
ciple we did not approve of, we decisively gave our sentiments 
against it, being willing to run all the risks of a government to 
be conducted on the principles then laid as the basis of it. 
The instance was new in the annals of mankind. No people 
had ever before deliberately met for so great a purpose. Other 
governments have been established by chance, caprice, or mere 
brutal force. Ours, thank God, sprang from the deliberate 
voice of the people. We provided, or meant to provide (God 
grant our purpose may not be defeated), for the security of 
every individual, as well as a fluctuating majority of the 
people. We knew the value of liberty too well to suffer it to 
depend on the capricious voice of popular favor, easily led 
astray by designing men, and courted for insidious pur- 
poses/ ' f 

"A people, free and enlightened, establishing and ratifying 
a system of government, which they have previously consid- 
ered, examined and approved! — This is the spectacle, which 
we are assembled to celebrate ; and it is the most dignified one 
that has yet appeared on our globe. . . . The scene before 
us is unexampled as well as magnificent. The greatest part of 
governments have been the deformed offspring of force and 
fear. . . ." % 

* Charge to Grand Jury, 1792, "Life and Correspondence of James 
Iredell," by G. J. McRee, Vol. II, pp. 365-366, 1858. 
tlbid., Vol. II, p. 146. 
t Oration by James Wilson, 4th of July, 1788. 



APPENDIX i 125 

Mr. Madison, speaking in the Ratifying Convention of Ills 
State, said : 

"Mr. Chairman, nothing has excited more admiration in the 
world than the manner in which free governments have been 
established in America ; for it was the first instance, from the 
creation of the world to the American Revolution, that free 
inhabitants have been seen deliberating on a form of govern- 
ment, and selecting such of their citizens as possessed their 
confidence, to determine upon and give effect to it. But why 
has this excited so much wonder and applause? Because it is 
of so much magnitude, and because it is liable to be frustrated 
by so many accidents. If it has excited so much wonder that 
the United States have, in the middle of war and confusion, 
formed free systems of government, how much more aston- 
ishment and admiration will be excited, should they be able, 
peaceably, freely, and satisfactorily, to establish one general 
government, when there is such a diversity of opinions and 
interests — when not cemented or stimulated by any common 
danger! How vast must be the difficulty of concentrating in 
one government, the interests, and conciliating the opinions, 
of so many different, heterogeneous bodies !" 

Again he writes : 

"The happy Union of these States is a wonder; their 
Constn. a miracle ; their example the hope of Liberty through- 
out the world." * 

"It appears to me, then, little short of a miracle, that the 
delegates from so many different States (which States you 
know are also different from each other, in their manners, 
circumstances, and prejudices) should unite in forming a sys- 
tem of national government," etc.f 

"And, in the important revolution just accomplished in the 
system of their united government, the tranquil deliberations 
and voluntary consent of so many distinct communities, from 
which the event has resulted," etc.J 

* "Works," edited by G. Hunt, Vol. IX, p. 357. 
f Washington to Lafayette, February 7, 1788. 
t Washington's Inaugural Speech, April 30, 1789. 



126 SECESSION AND CONSTITUTIONAL LIBERTY 

"A very large Field presents to our view without a single 
Straight or eligible Road that has been trodden by the feet of 
Nations. An Union of Sovereign States, preserving their Civil 
Liberties and connected together by such Tyes as to Preserve 
permanent & effective Governments is a system not described, 
it is a Circumstance that has not occurred in the History of 
Men .-.'."■* 

George Mason, attending the Federal Convention, writes 
to his son : 

"The eyes of the United States are turned upon this as- 
sembly, and their expectations raised to a very anxious degree. 
May God grant we may be able to gratify them, by establish- 
ing a wise and just government. For my own part, I never 
before felt myself in such a situation; and declare I would not, 
upon pecuniary motives, serve in this convention for a thou- 
sand pounds per day ... to view, through the calm, sedate 
medium of reason the influence which the establishment may 
have upon the happiness or misery of millions yet unborn, is 
an object of such magnitude, as absorbs, and in a manner 
suspends the operations of the human understanding." 

"The question now before you is such as no nation on 
earth, without the limits of America, has ever had the privi- 
lege of deciding upon. As the Supreme Ruler of the universe 
has seen fit to bestow upon us this glorious opportunity, let us 
decide upon it; appealing to Him for the rectitude of our 
intentions . . ."f 

"I see beings of a higher order anxious concerning our de- 
cision. When I see beyond the horizon that bounds human 
eyes, and look at the final consummation of all human things, 
and see those intelligent beings which inhabit the ethereal 
mansions reviewing the political decisions and revolutions 
which, in the progress of time, will happen in America, and 
the consequent happiness or misery of mankind, I am led to 
believe that much of the account, on one side or the other, will 
depend on what we now decide. Our own happiness alone is 

. * North Carolina Delegates to Govr. Caswell, June 14, 1787. 
t John Hancock, in Ratifying Convention of Massachusetts. 



APPENDIX 2 127 

not affected by the event. All nations are interested in the 
determination. We have it in our power to secure the happi- 
ness of one half of the human race. Its adoption may involve 
the misery of the other hemisphere." * 

To sum up : 

"The importance of the occasion was recognized by the 
delegates as well as by the public generally. When they and 
their work were the subject of prayer and preaching in the 
churches, when they became the second toast at banquets, fol- 
lowing directly after 'The United States/ it is not surprising 
that the members of the Convention took their work seriously 
. . . Madison asserted in the convention, and Hamilton re- 
peated after him, that they 'were now to decide forever the 
fate of Republican Government/ A few days later Gouver- 
neur Morris said that 'the whole human race will be effected 
by the proceedings of this Convention.' And after the con- 
vention was over Wilson said : 'After the lapse of six thou- 
sand years since the creation of the world, America now pre- 
sents the first instance of a people assembled to weigh delib- 
erately and calmly, and to decide leisurely and peaceably, upon 
the form of government by which they will bind themselves 
and their posterity/ " f 



APPENDIX 2 
{Page 23) 

Not merely independent of each other, they were, severally 
and in groups, antagonistic in feeling; not infrequently, al- 
most, or effectually, hostile in act, before, after, and in the 
very action of the Revolution: to all intents and purposes, 
separate nations under diverse forms of government, though 

* Patrick Henry, in Ratifying Convention of Virginia. Mr. Henry, it 
should be said, was not advocating unconditional ratification. 

f Max Farrand, "The Framing of the Constitution," p. 6, New Haven, 
19 12. 



128 SECESSION AND CONSTITUTIONAL LIBERTY 

speaking a common language and with, on the whole, similar 
social usages. 

"I need not mention to you, who know so well, the peculiar 
circumstances of America at the commencement of this revolu- 
tion. The several colonies were distinct and separate govern- 
ments, each jealous of another, and kept apart by local inter- 
ests and prejudices. " * 

Franklin likens the diversity of the States, even after eleven 
years of common action, to that of the different countries of 
Europe. 

"I send you. inclosed the proposed new Federal Constitution 
for these States . . . If it succeeds, I do not see why you 
might not in Europe carry the project of good Henry the 4th 
into Execution ; by forming a Federal Union and One Grand 
Republick of all its different States & Kingdoms ; by means of 
a like Convention; for we had many Interests to reconcile." t 

"The union effected among the colonies by means of cor- 
responding committees was a death blow to the authority of 
Britain . . . motives of common safety, when they had 
once assumed a hostile position, cemented the jarring interests 
of the colonies, and for the time subdued their inveterate 
jealousies . . . No longer did America exhibit the appear- 
ance of rival colonies, piquing themselves on separate rights, 
and boasting the relative advantages of different characters 
and different constitutions." J 

"... Les fitats n'ont reellement aucun interet pressant 

d'etre sous un seul chef. Leur politique qui se borne a leurs 

speculations commerciales, leur inspire meme reciproquement 

de 1' aversion et de la jalousie, passions qui se trouverent ab- 

sorbees pendant la guerre par l'enthousiasme de la liberte et 

de l'independance, mais qui com[m]encent a reprendre toute 

leur force. Ces republicains n'ont plus de Philippe a leurs 

portes." § 

* Charles Thomson to Benjamin Franklin, August 13, 1784. 
f Letter to M. Grand, October 22, 1787. 
JAdolphus, "History of England." 

§ M. Otto, French Charge d'Aif aires, to the Comte de Montmorin, while 
the Federal Convention was sitting. 



APPENDIX 2 129 

"It was found extremely difficult to prevent those irrita- 
tions, animosities, and discontents, from shewing themselves 
between the troops of different states, which have so often 
broken coalitions," etc.* 

"That a letter be written to General Schuyler, requesting 
him to recommend, in the strongest terms, harmony between 
the officers and troops of the different states; to discoun- 
tenance and suppress all provincial reflexions and ungenerous 
jealousies of every kind, and to promote, by every possible 
means, discipline, order, and zeal in the public service." t 

"The particular jealousies and prejudices of the Continental 
troops from the different states, led them frequently to throw 
out reflections tending to irritate each other ... A briga- 
dier writes concerning the animosity in the American army 
above noticed. Tt has already risen to such a height that the 
Pennsylvania and New England troops would as soon fight 
each other as the enemy . . . whole colonies (are) tra- 
duced and vilified as cheats, knaves, cowards, poltroons and 
hypocrites . . . for no other reason, but because they are 
situated east of New York." J 

"I hope none of my Friends will blame me for leaving the 
Service at this time. Be assured no man has the Good of the 
Service more at Heart, nor with more chearfullness would 
risque Life in Defence of American Liberty, but at the same 
time my own Honour and indeed the Good of the Service re- 
quire my Resignation, for be assured if indavours are made 
to keep Honour of preferment out of a Soldier's reach the 
Army must in a Short time be Composed of People who only 
mean to get Rich in the Service. And thank God I am not a 
Yankey. . . . For God sake keep our Troops together and 
keep them out of this Damned Country if Possible." § 

* The use of the word "coalitions" is significant. Marshall's "Life of 
Washington," Vol. Ill, p. 234; L, 1804. 
f Journals of Congress, July 19, 1776. 
t Gordon, Vol. II, p. 49; N. Y., 1789 et seq. "Minutes of a Conspiracy," 

P- 34- 

§ Letter of Col. Wm. Thompson of the Penna. Rifle Battalion, Camp 
of Prospect Hill (before Boston), Jan. 25, 1776. "Pennsylvania Magazine 
of History," etc., Vol. XXXV, p. 305; 191 1. Col. Thompson served with 
credit, and was of sufficient importance to be exchanged for Baron von 
Riedesel when captured. 
1—9 



130 SECESSION AND CONSTITUTIONAL LIBERTY 

"In preparing his papers for the press, I noticed occasional 
sentences in letters written by Gen. Frazer to his wife, and his 
sister, which implied a lack of friendly feeling on the part of 
himself and his neighbors toward the New England people 
and troops. This struck me as peculiar in a man of such a 
broad and just nature, and I was puzzled to explain it. But 
the evidence that the people, of Chester County at least, dis- 
liked and mistrusted the 'Yankees' is undeniable. 

"The first allusion to this feeling occurs in a letter to his 
wife written from Long Island May 23, 1776, very soon after 
he took the field. He says . . . 'If the New England troops 
do not fight better than their appearance indicates, they will 
make a poor hand of it' . . . July 15, he writes: 'There is 
not that dependence in the New England men that I expected. 
They make a most wretched appearance from home, as they 
are not able to endure hardship equal to the other American 
Troops. About three-fourths of them are now unfit for serv- 
ice, by what I can learn/ . . . 

"In the next letter to her from the same place July 15, 1776 
. . . 'We have heard that a large number of New England 
Troops are to be sent here to reinforce us. . . . The miser- 
able appearance, and what is worse the miserable behaviour 
of the Yankees, is sufficient to make one sick of the service. 
They are by no means fit to endure hardships. Among them 
there is the strangest mixture of Negroes, Indians, and 
Whites, with old men and mere children, which together with 
a nasty lousy appearance make a most shocking spectacle. No 
man was ever more disappointed than I have been in respect to 
them. . . . The Pennsylvania Troops have not much Con- 
nection with the New England Troops, and am sorry we can- 
not be on more friendly terms/ . . . 

"In a letter dated Ticonderoga August 6th 1776 to his wife 
he says: . . . 'Five hundred Troops from New England 
arrived at this place yesterday, and 1 500 more are expected in 
a few days. I have not yet seen them but unless they are better 
than the greatest part of those that have been here before 
them, they had better stay at home. No man was ever more 
disappointed in his expectations respecting New Englanders in 



APPENDIX 2 131 

general than I have been. They are a set of low, dirty, grip- 
ing, cowardly, lying rascals. There are some few exceptions 
and very few. They may do well enough at home, but every 
fresh man that comes here is so much loss to the army as they 
will get sick with the small-pox or some other lazy disorder, 
and those that are seasoned must take care of them and by 
that means weaken the army. . . . You may inform all your 
acquaintance not to be afraid that they will ever Conquer the 
other Provinces (which you know was much talked of), 
10,000 Pennsylvanians would I think be sufficient for ten times 
that number out of their own Country. All the Southern 
Troops live in great harmony. The others we have little or no 
connection with/ . . . 

"Here then is the secret of the antipathy. Evidently every- 
where out of New England, and in Pennsylvania as well as in 
the South, there was a wide spread apprehension that in case 
of victory to the American arms the Yankees would substitute 
their own tyranny for that of the mother country over the 
other Provinces. This is distinctly expressed in a letter to be 
later quoted. . . . 

"In a letter from his wife, dated August 27, 1776, she says 
. . . 'The people seem middling well reconciled to independ- 
ency, but very much fear the heavy taxes that are to come 
upon us, but above all they fear the New Englanders should 
the Americans gain the day' ... In her husband's letter to 
her, Ticonderoga Sept. 21, 1776, . . . Two or three 
Yankee Colonels have died lately, more of them are sick. In- 
deed, the most of them look like spectres, miserable creatures 
they are, the more I am acquainted with them the worse I like 
them, I hoped it would be otherwise' . . . 

This apprehension was seemingly not without some founda- 
tion. My thanks are due to Lord Lansdowne, who has had 
the courtesy to furnish me with a copy of the following letter 
to Lord Shelburne, preserved in his collections: "My Lord, 
Having read in the Public Prints, an assertion said to be made 
by your Lordships — 'that the Independence of the revolted 
Colonies would be destructive of their Liberties as well as ruin- 
ous to this Country' — if upon any declaration of your Lord- 



i 3 2 SECESSION AND CONSTITUTIONAL LIBERTY 

ships it is allowable for so small a Being as I am to make use 
of the word support, I would say that I can support that as- 
sertion with the following matter. Mr. Sam. Adams and Mr. 
Gewry (Gerry?) Members of Congress for Massachusetts 
Having appointed me to dine with them at German Town 
near Philadelphia and as I then sought information to guide 
my conduct, least on the one side I should engage in a foul 
Rebellion against my King & Country, or on the other in impos- 
ing a Tyranny over a Free People, I gave the closest attention 
to the conversation that ensued, and Having found that the 
Colonies were to be declared Independent of the Crown & 
Parliament of Great Britain and the most close alliance sought 
with France as the Power in Europe the most Inimical to as 
well as most capable of injuring the Mother Country, the con- 
versation assumed such a complexion that I thought the lead- 
ing men of the Colonies did not mean to Halt Here, — but to 
know where, I threw out — that a consolidation of the four 
New England Colonies into one making Boston the Capital & 
extending the Southern Limits to Hudsons River up the Mo- 
hawk to Oswego and striking a direct West Line through 
Canada embracing all to the N. & East including N. Scotia, 
Newfoundland &c. &c. such a consolidation calling the whole 
New England would make an Empire that in process of time 
& that not long would give laws to the World. I had not 
sooner done speaking than Adams starting from His chair 
took me by the Hand saying, my dear Friend extend the 
Boundery's to the South as far as the Delaware and if you 
had been in the very soul of me you could not Have expressed 
my sentiments more truely, and should we obtain Indepen- 
dence Old as I am I have not a doubt but I should see the 
rest compleated. Hence it is evident that even before the 
declaration of Independency was promulgated, the Conquest 
of Canada, N. Scotia &c. and the subdugation of the Prov- 
inces of N. York & the Jersey's were meditated. On this 
subject as on all others there seemed to be a perfect under- 
standing between the Leaders of N. England & Virginia who 
stiled their Countries Elder & Younger Sisters to the exclusion 
of all intermediate Sisters saying that the other Provinces 



APPENDIX 2 132a 

were but Parts severed from them by the Policy of the Mother 
Country — and upond my saying the Policy of the Sisters should 
Bring them Back, they said, undoubtedly, and so it must be, 
then asked me where I would draw the line between N. Eng- 
land & Virginia. Answered, the Eastern Part of Maryland & 
the Susquehanna following its West Branch, they said this 
would be an Equitable Boundery, as it would prevent the 
large Province of Pensilvania from falling intire to either, 
during this conversation what seemed to me extraordinary was 
that the only Delegate then attending Congress from the Jer- 
sey's being present gave His intire approbation to this Par- 
tition. 

The first part of the above plan is to be the Conquest of all 
the British Settlements on the Continent. Hence the rejec- 
tion of the terms lately offered, and also the necessity of their 
joining Hands & Hearts with France, Spain & Holland to 
wrest from us our possessions every where, particularly the W. 
India islands to gratify the Houses of Bourbon, which they 
Have Covenanted to do. and I am extremely sorry to add as 
it seems greatly to influence their Conduct — that the absolute 
ruin of Great Britain would be the absolute agrandisment of 
America, because all the money'd & industrious part of the 
People would go there, to effect the latter purpose I fear 
I am too well grounded in asserting that the Colonists need 
not go such lengths, but rest satisfied with a Peaceable Simple 
Independance as that alone would draw off 200000 families, 
which in a great measure accounts for the Indiscriminate sup- 
port they meet with in this Country. Here I shall beg leave to 
observe — that from what I Have Heard and seen in that 
Country, and what I Have Heard & seen in this, it is to 1 me a 
self evident proposition — that the absolute unconditional In- 
dependance of America, would be the absolute unconditional 
ruin of Great Britain. But that Both may yet be Happily 
averted and America Brought Back I Have not the smallest 
doubt. 

My Lord, if you were not a Higher character from Abili- 
ties than even Station I should not have risked myself in this 



132b SECESSION AND CONSTITUTIONAL LIBERTY 

address. But as wisdom cannot misconstrue, an Apology 
would be an insult. I am, My Lord, 

with the most perfect respect 
Your Lordships 
24 July 1782 Most Obedient Serv*. 

E. WRIXON. 
at Mr. Reeds 

Hamilton Street 

Hyde Park Corner. 

N.B. 

the above signed was Major 
of the Kings 38th regt. of foot and in the year 1776 a Vote 
of Congress was passed appointing Him Chief Engineer of 
the Continental Army with the Rank of Colonel, which He 
refused, as appears by the Printed resolutions of Congress, 
but Congress supposing the refusal to Have proceeded from 
an expectation of more exalted rank, offered Him by a Com- 
mittee of three to make Him Adjutant General of their Army 
in the room of Gates, with the rank of Brigadier General also 
refused & soon after was offered the rank of Majr. General 
and finally a separate command to the Southward, Georgia 
proposed But the whole refused, rendered the King all the 
service in His Power got the knowledge of the particular 
Powers given to Doctor Franklin relative to a close Alliance 
with France which went to the final ruin of this Country, to 
avert which by an immediate Communication He came off 
the first opportunity, and Having landed at Nants, arrived at 
Paris two days after Franklin and Instantly laid the whole 
before Lord Stormont the Kings Ambassador who has been 
pleased to acknowledge the information to be strictly just and 
in consequence did Him the High Honor to mention Him to 
the King. 

in the above services He expended five Hundred pounds of 
His private Property — for all which He Has now a pension 
of £100 pr. An. 

A record of the above services is now 
in Mr. Rowe's office in the Treasury 
authenticated By the Lords Stormont 
& Sackville." 



APPENDIX 2 133 

"It is well known that New England's influence in the 
Congress was greater than that of any other group of the 
Colonies. While sympathising with her the middle and south- 
ern colonies were not firmly persuaded that the critical point 
had been reached, when the domination of the New England 
contingent in Congress forced the hand of their colleagues 
and precipitated the war. It was doubtless due to this cause 
that the signatures of these colleagues to the Declaration of 
Independence were so slow in being affixed. 

"But whatever be the reason^ it was unhappily true that the 
sections of this country in its infancy, like the sections of all 
other countries, regarded each other with a suspicion and al- 
most hatred only less intense than the foreigner." * 

"If we are to be slaves let us be so to the lion, and not to 
the lousy dirty vermin of New England." f 

"We are going on within doors with tardiness enough . . . 
a kind of fatality still prevents our proceeding a step in the 
important affairs of confederation. Yesterday and the day 
before was wholly spent in passing resolutions to gratify New 
York, or, as they say, to prevent a civil war between that State 
and the Green Mountain men," etc. J 

The Journals of Congress, Mr. Madison's correspondence, 
and other records show that a prominent factor in allowing 
the New Hampshire Grants to be erected as the independent 
State of Vermont was the apprehension that otherwise they 
would enter into alliance with the British. 

"Who . . . could imagine, that the most violent local 
prejudices would cease so soon ; and that men who came from 
the different parts of the continent, strongly disposed . . . 
to despise and quarrel with each other would instantly become 
but one patriot band of brothers?" § 

* Some Extracts from the "Papers of General Persifor Frazer," Penn- 
sylvania Magazine, Vol. XXXI, pp. 133-137 ", IO °7- 

t "Minutes of a Conspiracy against the Liberties of America" ; Phila. 
(reprinted), 1865. 

I Samuel Adams to R. H. Lee, June 29, 1777. "Life of Samuel Adams," 
by Wm. V. Wells, Vol. II, p. 475 J B., 1865. 

§ Washington's Farewell 'Orders to the Armies of the United States, 
November 2, 1783. 



134 SECESSION AND CONSTITUTIONAL LIBERTY 

Yet Washington himself, in his more intimate moments, 
did not love all his brothers. 

"For notwithstanding all the public virtue which is ascribed 
to those people [i, e., of Massachusetts] there is no nation 
under the sun (that I ever came across) pay greater adoration 
to money than they do." * 

"To be plain these people — among friends — are not to be 
depended upon if exposed . . ." f 

Genl. Greene's defense of his section, it may be noted, is 
not very different from Washington's attack upon it. 

"The common people [i. e., of Massachusetts] are exceed- 
ingly avaricious; the genius of the people is commercial . . . 
The sentiment of honor . . . has not yet got the better of 
interest . « . " Nathaniel Greene to Henry Ward, December 
18, I775- 

To the same effect : 

"Mercantile cupidity forms, perhaps, one of the distinctive 
traits of the American, especially of the northern people, and 
it will undoubtedly exercise an important influence on the 
future destiny of the Republic." $ 

"Mr. Carter Braxton of Virginia, speaking of the [men? 
people? A word is here missing in the MS.] of New England 
in the Virginia Convention before the Declaration of Inde- 
pendence, said T abhor their manners — I abhor their laws — I 
abhor their governments — I abhor their religion.' I on the 
contrary," etc. § 

In fact New England was entirely distrusted by the other 
sections. Possibly, the view of its "conscience," as expounded 

* Washington to Joseph Reed, February 10, 1776. This is also note- 
worthy in that he speaks of Massachusetts as "a nation." 
• f Washington (a propos of Bunker Hill). 

% Correspondence of Gerard de Rayneval. John Durand, "New Ma- 
terials for the History of the American Revolution," N. Y., 1889. 

§ Benjamin Rush, MSS. Notes of Speeches in Congress, Vol. II, p. 
3, 'preserved in the Ridgway Branch of the Library Company of Phila- 
delphia (71257, D). 



APPENDIX 2 135 

by Mr. Irving in the Sixth and Seventh Chapters of his "His- 
tory of New York" (too long for quotation), and elsewhere, 
was, in their regard, somewhat less jocular than it seems. 

"Before I touch upon the commercial points, I shall offer 
a few observations on the high and exalted pretensions of the 
people of the eastern states to superior morality and religion 
over the rest of the union. There has not been, it is true, 
quite so much parade with these exclusive claims as on the 
subject of commerce. Perhaps the reason is, that there was 
no political purpose to be answered by them. But that the 
people of that section of the union are in general thoroughly 
persuaded that they very far excel the rest of the nation in 
both religion and morals, no man who has been conversant 
with them can deny. This folly of self-righteousness, of 
exalting ourselves above others, is too general all over the 
world : but nowhere more prevalent, or to greater extent, than 
in the eastern states. To pretend to institute a comparison 
between the religion and morals of the people of Boston and 
those of Philadelphia, New York, or Baltimore, would be 
regarded as equally extravagant and absurd, with a compari- 
son of the gambols of a cow to the sprightly and elegant cur- 
vetings of an Arabian courser. ... The New England 
character for morality has been various at various times. It 
was not long since at a very low ebb indeed. It is within the 
memory of those over whose chins no razor has ever mowed 
a harvest, that Yankee and sharper were nearly synonymous. 
And this was not among the low and illiberal, the base and the 
vulgar. It pervaded all ranks of society. In the middle and 
southern states traders were universally very much on their 
guard against Yankee tricks when dealing with New Eng- 
landers." * 

"They now arrogate to themselves (and, for party pur- 
poses, their claims are sometimes admitted by their political 
friends), to be as I have stated, a superior order to their fel- 
low citizens. They look down on those of the southward with 

* Carey, "The Olive Branch," p. 274. 



136 SECESSION AND CONSTITUTIONAL LIBERTY 

as much contempt, and with as much foundation too, as the 
Pharisee of old did on the despised publican." * 

"Calvinism, rigid, uncompromising Calvinism, is the inheri- 
tance the New Englanders have received from their fore- 
fathers ; it was the sacred fire their ancestors bore with them 
into exile, and which has continued to burn in the hearts, and 
on the altars of their descendants; sometimes indeed like 'the 
furnace blue/ to which Moloch treated his worshippers, but of 
late years with a less fatal, though still angry, light, round 
which the trumpets and timbrels of the priests still sound 'in 
dreadful harmony.' 

"Besides the indulgence of spiritual pride (for spiritual 
pride is a luxury of the highest rate to those who are too 
frugal, or too conscientious, to tolerate grosser enjoyments), 
the early colonists perceived the Calvinistick system of church 
discipline to be best suited to the poverty and simplicity of 
their condition. Calvinism has therefore grown up with re- 
publicanism, and from an accidental connexion, claims to be 
of the same kindred : but the vital spirit of Calvinism is in- 
tolerance, and intolerance is in no shape a republican prin- 
ciple." f 

"The New Englanders . . . were far from being accep- 
table guests . . . the plodding Dutch and Germans of New 
York and Pennsylvania, held them in particular abhorrence, 
and as far as they could, hunted them from their neighbour- 
hood, whenever they attempted to gain a footing in it. . . ." $ 

The following extract, referring to the experience of the 
Schuyler family of New York, bears out the foregoing state- 
ment. 

"The people of New England left the mother country, as 
banished from it by what they considered oppression; came 
over foaming with religious and political fury, . . . They 
might be compared to lava, discharged by the fury of internal 
combustion, from the bosom of the commonwealth, while in- 

* Carey's "Olive Branch," pp. 256, 257; Phila., 1815. 

t Francis Hall, "Travels in 1816 & 1817," pp. 446 et seq.; L., 1818. 

t Ibid., p. 444. 



APPENDIX 2 137 

flamed by contending elements. This lava, every one ac- 
quainted with the convulsions of nature must know, takes a 
long time to cool; and when at length it is cooled, turns to a 
substance hard and barren, that long resists the kindly in- 
fluence of the elements, before its surface resumes the appear- 
ance of beauty and fertility. Such were the almost literal 
effects of political convulsions, aggravated by a fiery and in- 
tolerant zeal for their own mode of worship, on these self- 
righteous colonists," * 

"The winter at the Flats was sufficiently melancholy, and 
rendered less agreeable by some unpleasant neighbours we had. 
These were a family from New England, who had been pre- 
paring to occupy lands near those occupied by my father. 
They had been the summer before recommended to Aunt's 
generous humanity, as honest people, who merely wanted a 
shelter in a room in her empty house, till they should build a 
temporary hut on those new lands which they were about to 
inhabit. When we came, the time permitted to them had long 
elapsed, but my father, who was exceedingly humane, indulged 
them with a fortnight more after our arrival, on the pretence 
of the sickness of a child ; and there they sat, and would not 
remove for the winter, unless coercion had been used for that 
purpose. We lived on the road side ; there was at that time a 
perpetual emigration going on from the province of New Eng- 
land to our back settlements. Our acquaintance with the fam- 
ily who kept possession beside us, and with many of even the 
better sort, who came to bargain with my father about his 
lands, gave us more insight than we wished into the prevalent 
character of those people, whom we found conceited, litigious, 
and selfish beyond measure. My father was told that the only 
safe way to avoid being overreached by them in a bargain, was 
to give them a kind of tacit permission to sit down on his 
lands, and take his chance of settling with them when they 
were brought into some degree of cultivation; for if one did 
bargain with them, the custom was to have it three years free 
for clearing, at the end of which, the rents or purchase money 
was paid. By that time, any person who had expended much 

* Memoirs of an American Lady," Vol. I, p. 197; L., 1808. 



138 SECESSION AND CONSTITUTIONAL LIBERTY 

labour on land, would rather pay a reasonable price or rent for 
it, than be removed. 

"In the progress of his intercourse with these very vulgar, 
insolent, and truly disagreeable people, my father began to 
disrelish the thoughts of going up to live among them.' , * 

"Indeed the whole race of Yankee seamen are certainly the 
most enterprising people in the world. They are in all quar- 
ters of the globe where a penny is to be made. In short, they 
love money a little better than their own lives. What is 
worst, they are not always very nice about the means of mak- 
ing it ; but are. ready to break laws like cobwebs, whenever it 
suits their interest. You know we passed an embargo-law 
sometime ago, to starve the English out of house and home, 
and made all our coasting captains give bond and take oath, 
that they would not sail to any foreign port or place whatever. 
Suddenly, there began to blow a set of the most violent gales 
that had ever been known, and what was rather singular, they 
all insisted upon blowing towards the West Indies, in the very 
teeth of the law, as if on purpose to save the penalty of the 
bonds. It looked indeed, to good people, as if Providence had 
determined to take those islands under his care, and send them 
supplies to save them from famine, in spite of American < 
congress. Our rulers, however, who had learnt from history 
that these Yankees used formerly to deal with witches, began 
to suspect that all these storms were raised by the black art, 
or at least were manufactured in a notary's office, expressly 
for the occasion, and therefore resolved to lay them at once. 
So they passed a law, which declared in substance, that no 
kind of accident or distress should be given in evidence to save 
the penalties of the bonds. This act poured sweet oil upon 
the ocean at once, and produced a profound calm, in spite of 
witches and notaries, and the winds soon went on to blow 
from all points of the compass as formerly, anything in the 
act entitled, an act laying an embargo, &c. to the contrary 
notwithstanding. 

" 'But bless me/ said I, putting in a word at last, as he 
stopped to draw his breath, 'is it possible that you Virginians 

♦Memoirs of an American Lady," Vol. II, p. 218. L., 1808. 



APPENDIX 2 139 

can laugh at your own countrymen at this rate?' 'O! as to 
that/ said he, 'they return the compliment as well as they can, 
and between ourselves if we have the most laugh, I am afraid 
we haven't always the most reason on our side/ Here a 
servant came, and called my young acquaintance away." * 

"The delegates for Connecticut informed the Congress, that 
they had met some of the delegates for Pennsylvania, in order 
to take into consideration the matters referred to them, but 
not being able to come to any agreement with them, and as 
the dispute between the people of the two colonies, on the 
waters of the Susquehannah, had proceeded to bloodshed, and 
in their apprehension may be attended with very dangerous 
consequences unless speedily prevented, they moved that a 
committee be appointed out of the other colonies to take this 
matter into consideration." f 

Nov. 4. "The committee appointed on the difference be- 
tween the people of Pennsylvania and Connecticut, brought in 
their report in Congress came to the following resolution. — > 
The Congress considering that the most perfect union between 
all the colonies, is essentially necessary for the preservation of 
the just rights of North America, and being apprehensive that 
there is great danger of hostilities being commenced, at or near 
Wyoming, between the inhabitants of the colony of Pennsyl- 
vania and those of Connecticut," etc. J 

"Let me, Sir, mention one circumstance in the recollection 
of every honourable gentleman who hears me. To the de- 
termination of congress are submitted all disputes between 
states, concerning boundary ... In consequence of this 
power . . . this state [Pennsylvania] was successful 
enough to obtain a decree in her favour, in a difference then 
subsisting between her and Connecticut; but what was the 
consequence? the congress had no power to carry the decree 
into execution." § 

* Letters from Virginia, p. 38. Bait, 1816. 

t Journals of Congress, Oct. 14, 1775- 

tlbid., 177S- 

§ James Wilson, in Ratifying Convention of Pennsylvania. N.B. — The 
same gentleman who thought (v. p. 157) that the States were unified or 
made one state by the Declaration of Independence. 



140 SECESSION AND CONSTITUTIONAL LIBERTY 

Pennsylvania also had trouble with other States on the 
question of boundary, etc. 

" Whereas it appears to Congress, from the representation 
of the delegates of . . . Pennsylvania, that disputes have 
arisen between the states of Pennsylvania and Virginia, rela- 
tive to the extent of their boundaries, which may probably/' 
etc.* 

"The pay, which has been voted to all the officers, which 
the continental congress intends to choose, is so large, that I 
fear our people [viz.: Massachusetts and New England] will 
think it extravagant, and be uneasy. Mr. Adams, Mr. Paine, 
and myself, used our utmost endeavours to reduce it, but in 
vain. 

"Those ideas of equality, which are so agreeable to us 
natives of New-England, are very disagreeable to many gen- 
tlemen in the other colonies. They had a great opinion of the 
high importance of a continental general, and were determined 
to place him in an elevated point of light. They think the 
Massachusetts establishment too high for the privates, and too 
low for the officers, and they would have their own way." t 

This dispute led to the first overt threat of secession by a 
state which I have met: the Legislature of Massachusetts 
wrote to Congress as follows : 

"July ii, 1783 . . . It is thought to be essentially neces- 
sary, especially at the present time, that Congress should be 
expressly informed, that such measures as are complained of, 
are extremely opposite and irritating to the principles and 
feelings which the people of some eastern states, and of this in 
particular inherit from their ancestry. 

"The legislature cannot without horror entertain the most 
distant idea of the dissolution of the union, which subsists be- 
tween the United States, and the ruin which would inevitably 
ensue thereon ; but with great pain they must observe, that the 
extraordinary grants and allowances which Congress have 
thought proper to make to their civil and military officers, have 

* Journals of Congress, December 27, 1779. 

t Letter from John Adams to Elbridge Gerry, June 18, 1775. 



APPENDIX 2 141 

produced such effects in this commonwealth, as are of a threat- 
ening aspect. — From these sources, and particularly from the 
grant of half pay to the officers of the army, and the proposed 
commutation thereof, it has arisen, that the general court has 
not been able hitherto to agree in granting to the United 
States, an impost duty, agreeable to the recommendation of 
Congress. " * 

April 30, 1784, the same gentleman wrote to Mr. Noah 
Webster as follows : 

"... Some time in the month of September last, a gen- 
tleman in Connecticut, by his letter, requested me to give him 
my opinion of a subject (I think) too much altercated in that 
State as well as this — the commutation of the half -pay granted 
by Congress to the late officers of the army for life, for full 
pay during the term of five years. I did not hesitate to say 
in return, that Congress was, in the nature of their appoint- 
ment, the sole judge of the necessary means of supporting 
the late army which had been raised for the defence of our 
common rights against the invasions of Great Britain; and if, 
upon their own deliberate counsels, and the repeated represen- 
tations of the Commander-in-Chief of the army, they judged 
that the grant of half -pay for life was a measure absolutely 
necessary for the support of a disciplined army for that pur- 
pose, they had an undoubted right to make it; and as it was 
made in behalf of the United States, by their representatives 
authorized to do it, each State was held in justice and honor, 
even though it should seem to any to have been an ill-judged 
measure, to comply with it. Because States and individual 
persons are equally bound to fulfil their obligations ; and it is 
given as a characteristic of a good and honest man, that 
'though he sweareth (or promiseth) to his own hurt, he 
changeth not.' I moreover acquainted him, that, although I 
was never pleased with the idea of half-pay for life, for rea- 
sons which were satisfactory to myself, some of which I freely 
explained to him, yet I had always thought that, as the oppor- 

* This is signed by no less a person than Samuel Adams. Journals of 
Congress, September, 1783. 



142 SECESSION AND CONSTITUTIONAL LIBERTY 

tunities of the officers of the army for acquiring moderate for- 
tunes, or making such provision for their families as men gen- 
erally wish to make, were by no means equal to those of their 
fellow-citizens at home, it would be but just and reasonable 
that an adequate compensation should be made them at, or as 
soon as conveniently might be after, the end of the war, and 
that therefore a suitable compensation had fully coincided 
with my views of justice and policy." * 2 A (v. p. 409, 
vol. 2). 

"Among other reasons privately weighing with him, he had 
observed that many of the most respectable people of America 
supposed the preservation of the Confederacy essential to 
secure the blessings of the revolution; and permanent funds 
for discharging debts essential to the preservation of Union. 
. . . Again without permanent & general funds he did not 
conceive that the danger of convulsions from the army could 
be effectually obviated. Lastly he did not think that any thing 
wd. be so likely to prevent disputes among the States with 
the calamities consequent on them. The States were jealous 
of each other, each supposing itself to be on the whole a cred- 
itor to the others. The Eastern States in particular thought 
themselves so with regard to the S. States. (See Mr. Ghoram 
[sic] in the debates of this day.) If general funds were not 
introduced it was not likely the balance wd. ever be dis- 
charged, even if they sd. be liquidated. The consequence wd. 
be a rupture of the confederacy. The E. States would at 
sea be powerful & rapacious; the Southern, opulent & weak. 
This wd. be a temptation ; the demands on the S. St. would be 
an occasion ; reprisals wd. be instituted ; Foreign aid would be 
called in by first the weaker then the stronger side, & finally 
both be made subservient to the wars & politics of Europe." t 

"You will suffer me to renew my exhortations to an ex- 
change of your office under the State for a seat in the Legis- 
lature. It depends much in my opinion on the measures which 
may be pursued by Congress & the several States within the 

* William V. Wells, "Life of Samuel Adams," Vol. Ill, p. 209; B., 
1865. What did Mr. Adams think? 

t Debates in Congress of the Confederation, February 21, 1783. Note 
in MS. Hunt's edition of "Madison's Writings," Vol. I, p. 382. 



APPENDIX 2 143 

ensuing period of 6 months whether prosperity & tranquillity, 
or confusion and disunion are to be the fruits of the Revolu- 
tion. The seeds of the latter are so thickly sown, that nothing 
but the most enlightened and liberal policy will be able to 
stifle them. The Eastern States, particularly Massachusetts, 
conceive that, compared with the Southern, they are greatly 
in advance in the general account. A respectable Delegate 
from Massachusetts, a few days ago, being a little chafed by 
some expressions of Messrs. Lee & Mercer unfavorable to 
loan-office creditors, said that if justice was not to be obtained 
thro' general confederacy, the sooner it was known the bet- 
ter, that some States might be forming other confederacies 
adequate to the purpose, adding that some had suffered im- 
mensely from the want of a proportional compliance with 
demands for men & money by others. However erroneous 
these ideas may be, do they not merit serious attention? Un- 
less some amicable & adequate arrangements be speedily taken 
for adjusting all the subsisting accounts, and discharging the 
public engagements, a dissolution of the Union will be inevit- 
able. Will not, in that event, the Southern States which at sea 
will be opulent & weak, be an easy prey to the Eastern, which 
will be powerful & rapacious? and particularly if supposed 
claims of justice are on the side of the latter will there not 
be a ready pretext for reprisals? The consequence of such 
a situation would probably be that alliance would be sought 
first by the weaker & then by the stronger party & this coun- 
try be made subject to the wars & politics of Europe." * 

The New England States could not even agree among 
themselves. 

"This hostility, which, from the beginning, had character- 
ized the intercourse of the other settlements with the fathers 
of Rhode-Island, in 1643, was embodied in the confederacy 
which was established among the colonies of New England. 
The leading object of this confederacy was the mutual pro- 
tection of its members against the Indians, whose hostility was 

* Madison to Edmund Randolph, February 25, 1783. Hunt's edition of 
"Madison's Writings," Vol. I, p. 385. 
I— 10 



144 SECESSION AND CONSTITUTIONAL LIBERTY 

threatened on every side, and against the rising settlements 
of the French and the Dutch, with whom England was then 
frequently at war. The circumstances of its formation are 
worthy of a moment's particular consideration. The contract- 
ing parties to the league, were the colonies of Massachusetts 
and Plymouth, of New Haven and Connecticut, each of which, 
by its Commissioners, signed the articles at Boston, on the 
19th of May, 1643. This union, Rhode-Island was not in- 
vited to join, and subsequently, at her own application to be 
admitted a member, she was deliberately refused admission; 
an act which, taken in all its circumstances, stands out among 
the most unchristian and inhuman, recorded in Puritan his- 
tory, in whose strange records are so often blended the direst 
atrocity and the loftiest virtue. Here was an infant, feeble 
colony, situated between two powerful races of savages — the 
Wampanoags on the east, and the Narragansetts on the west — 
and separated by the wide Atlantic, from the mother coun- 
try. Its people were of the same Anglo-Saxon stock, and pro- 
fessed the same protestant faith with their neighbors. They 
had come from England in the same ships, which bore the 
colonists of Plymouth and Boston, of New-Haven and Hart- 
ford. Like them, they had lighted the fires of civilization in 
the wilderness, and, by their beneficent influence with the In- 
dians, they had, more than once, saved the whole country * 
from the desolations of savage war. Yet it was all in vain. 
They had adopted the startling heresy, that men are respon- 
sible for their opinions, to God alone — that the civil power may 
not interfere in religious concernments — and that before the 
law of the land, all should alike be equal — whether Protestants 
or Papists — whether Jews or Turks. For this opinion, which 
they had dared to proclaim, and to carry into practice, they 
were placed beneath the ban of universal proscription, and 
were deliberately excluded from the alliance and the sym- 
pathies of the whole civilization of the country — to perish, 
it might be, from the wastings of starvation and disease, or 
amid the terrors of Indian massacre and conflagration." * 

* William Gammell, Address before the Rhode-Island Historical So- 
ciety, November 20, 1844. 



APPENDIX 2 145 

"In 1656, Massachusetts commenced the persecution of the 
Quakers, which soon extended through all New England. 
Banished from every other Colony, they fled to Rhode-Island, 
where, though they had but few sympathies with the inhabi- 
tants, they were kindly received, and were admitted to all the 
privileges of citizens and freemen. But the Commissioners 
of the United Colonies hunted them even here. In two sev- 
eral appeals, they urged the authorities of this colony, by every 
motive which could be addressed to the self-interest of a com- 
munity, to join in the general persecution. . . . And, when 
finding all persuasives vain, the Commissioners, irritated at 
her inflexible adherence to her noble principles, threaten to sus- 
pend all intercourse, and thus dry up the very sources of 
subsistence to the colony, the Assembly calmly make their 
appeal to 'his Highness and honorable council' in England." * 

"In the year 1644, the Indians in Virginia, under the insti- 
gation of Opechancanough, successor of Powhatan, undertook 
to exterminate the colonists in that province, when five hun- 
dred persons, who were engaged in celebrating a victory of 
the king over the Parliamentary army in the war then rag- 
ing, were massacred at the first surprise. A ship was sent to 
Boston to procure powder for the defence of the colony, but 
the general court declined to furnish it. This refusal was 
owing to the fact that the people of Virginia sympathized 
with the king in the pending struggle, and to the further fact 
that three ministers sent out from New England at the in- 
stance of some of the 'elect,' who had found their way into 
Virginia, were sent out of the province by Governor Berke- 
ley for violating the law — Governor Winthrop declaring that 
the massacre of the Virginians was a punishment 'for their 
reviling the Gospel and those faithful ministers.' " f 

"In the present state of the country, closely united by a na- 
tional representation, submitted to the operation of the same 
national law, and, as it were, amalgamated by the various rela- 
tions arising from these causes, no opinion can be formed of 
the very dissimilar state of manners, habits of life, and modes 

*Wm. Gammell, Address before R. I. Hist. Sec'y, Nov. 20, 1844. 
t 'The Heritage of the South," by Jubal A. Early, p. 24; 191$. 



146 SECESSION AND CONSTITUTIONAL LIBERTY 

of transacting public business, which existed at the commence- 
ment of the revolution, in the different British provinces. Lit- 
tle connexion subsisted between the different sections of the 
country, however contiguous; the intercourse between the 
extremes of the continent was limited, and only kept up from 
motives of curiosity or business. England was the point of 
universal attraction, and the exertions of industry, as well as 
the calls of pleasure, terminated there." * 

"It is possible that in the phrase 'American/ I may be too 
general. The United States form a continent of almost differ- 
ent nations, and I must now, and always, be understood to 
speak only of that portion of them which I have seen." f 

"The Americans, on the contrary, [at the siege of Boston] 
. . . lived happy . . . awaiting the succours . . . These 
succours were . . . furnished with much generosity by the 
Southern Provinces; provinces, with which, under the Eng- 
lish Government, they had no connexion whatever, and which 
were more foreign to them than the mother country. It was 
already a great mark of confidence, therefore, on the part of 
the New Englanders to count upon that aid which was offered 
by generosity alone." X 

"Si done on veut se faire une idee de la republique ameri- 
caine, il ne faut pas confondre les Virginiens qu'un esprit 
aussi guerrier que mercantile, aussi ambiteux que speculatif, a 
conduit sur le continent, avec les nouveaux Anglais qui doivent 
leur origine a l'enthousiasme religieux; il ne faut pas croire 
trouver precisement les memes hommes en Pennsylvania . . . 
et dans le Caroline meridionale . . . En voila assez pour 
prouver que les memes principes, les memes opinions, les 
memes habitudes ne peuvent pas se rencontrer dans les treize 
Etats-Unis. ..." § 

Justice Story, in his "Commentaries," says that "the col- 
onies were . . . for many purposes one people"; one may 

. * "Biography of the Signers," Second Edition, Vol. V, p. 223 ; Phila., 
1828. 

f Mrs. Trollope, "Domestic Manners of the Americans," p. 35 ; N. Y., 
1832. 

$ Chastellux, "Travels in America," Vol. II, p. 274; L., 1787. 

§Chastellux, "Voyages," Vol. II, p. 264; P., 1786. 



APPENDIX 2 147 

admit this, with the equally true assertion that "for many 
purposes" the States of Europe are "one people." All de- 
pends upon the meaning attached to "one people." But for 
a discussion of the point v. "Paper read before the Social 
Science Association, September 6, 1877," by the Hon. John 
Randolph Tucker. 

Even at that day, before the young quat of slavery had been 
rubbed to the sense, in the generation of and after the fram- 
ing of the Constitution, the alienation, if not antipathy, of 
the sections was noted not only by Americans, but by intelli- 
gent foreigners; e. g.: 

"One of these days, the Northern and Southern powers will 
fight as vigorously against each other, as they have both united 
to do against the British," etc.* 

"Can there ever be any thorough national fusion of the 
Northern and Southern states? I think not. In fact, the 
Union will be shaken almost to dislocation whenever a very 
serious question between the states arises," f 

"What you say about the quarrel in the United States is 
sophistical. No doubt, taxation may, and perhaps in some 
cases must, press unequally, or apparently so, on different 
classes of people in a state . . . But when New England, 
which may be considered a state in itself, taxes the admission 
of foreign manufacturers in order to cherish manufactures 
of its own, and thereby forces the Carolinians, another state 
of itself ... to buy worse articles at a higher price, it is 
altogether a different question, and is, in fact, downright 
tyranny of the worst, because of the most Sordid kind. What 
would you think of a law which should tax every person in 
Devonshire for the pecuniary benefit of every person in York- 
shire ? And yet that is a feeble image of the actual usurpation 
of the New England deputies over the property of the South- 
ern States." X 

"Mr. Madison said, that, having always conceived that the 
difference of interest in the United States lay not between the 

*"Life & Opinions of Col. George Hanger," Vol. II, p. 427; L., 1801. 
t Coleridge, "Table Talk," January 4, 1833. Edin., 1905. 
tlbid., April 10, 1833, pp. 229, 230; Edin., 1905. 



148 SECESSION AND CONSTITUTIONAL LIBERTY 

large and small, but the Northern and Southern States, and 
rinding that the number of members allotted to the Northern 
States was greatly superior, he should have preferred an addi- 
tion of two members to the Southern States — to wit, one to 
North and one to South Carolina, rather than of one member 
to Virginia. " * 

"A distinction had been set up, and urged between the 
Northern and Southern States. He had hitherto considered 
this doctrine as heretical. He still thought the distinction 
groundless. He sees, however, that it is persisted in ; and the 
southern gentlemen will not be satisfied unless they see the way 
open to their gaining a majority in the public councils. The 
consequence of such a transfer of power from the maritime 
to the interior and landed interest will, he foresees, be such 
an oppression to commerce, that he shall be obliged to vote 
for the vicious principle of equality in the second branch, in 
order to provide some defence for the Northern States against 
it. But, to come more to the point — either this distinction is 
fictitious or real; if fictitious, let it be dismissed, and let us 
proceed with due confidence. If it be real, instead of attempt- 
ing to blend incompatible things, let us at once take a friendly 
leave of each other. There can be no end of demands for 
security, if every particular interest is to be entitled to it. The 
Eastern States may claim it for their fishery, and for other 
objects, as the Southern States claim it for their peculiar 
objects. In this struggle between the two ends of the Union, 
what part ought the Middle States, in point of policy, to take? 
To join their eastern brethren, according to his ideas. If the 
Southern States get the power into their hands, and be joined, 
as they will be, with the interior country, they will inevitably 
bring on a war with Spain for the Mississippi. This language 
is already held. The interior country, having no property nor 
interest exposed on the sea, will be little affected by such a 
war. He wished to know what security the Northern and 
Middle States will have against this danger. It has been said 
that North Carolina, South Carolina, and Georgia only, will 
in a little time have a majority of the people of America. They 

* Elliot's "Debates," Vol. V, p. 306. 



APPENDIX 2 149 

must in that case include the great interior country, and every- 
thing was to be apprehended from their getting the power into 
their hands," * 

"There is a solid distinction, as to interest, between the 
Southern and Northern States." f 

"But I observe, with regret, that there is a general spirit 
of jealousy with respect to our northern brethren. Had we 
this political jealousy in 1775? If we had had, it would have 
damped our ardor and intrepidity, and prevented that unani- 
mous resistance which enabled us to triumph over our enemies. 
It was not a Virginian, Carolinian, or Pennsylvanian, but the 
glorious name of an American, that extended from one end of 
the continent to the other, that was then beloved and confided 
in. Did we then expect that, in case of success, we should be 
armed against one another ? I would have submitted to Brit- 
ish tyranny rather than to northern tyranny, had what we have 
been told been true — that they had no part of that philan- 
thropic spirit which cherishes fraternal affection, unites 
friends, enables them to achieve the most gallant exploits, and 
renders them formidable to other nations. 

"Gentlemen say that the states have not similar interests; 
that what will accommodate their interests will be incompatible 
with ours; and that the northern oppression will fetter and 
manacle the hands of the southern people. Wherein does the 
dissimilarity consist? Does not our existence as a nation 
depend on our union? Is it to be supposed that their princi- 
ples will be so constuprated, and that they will be so blind 
to their own true interests, as to alienate the affections of 
the Southern States, and adopt measures which will produce 
discontents, and terminate in a dissolution of a union as neces- 
sary to their happiness as to ours? Will not brotherly affec- 
tion rather be cultivated? Will not the great principles of 
reciprocal friendship and mutual amity be constantly incul- 
cated, so as to conciliate all parts of the Union? This will 
be inevitably necessary, from the unity of their interests with 
ours. To suppose that they would act contrary to these prin- 

* Gouverneur Morris, in Elliot's "Debates," Vol. V, p. 308. 
f Pinckney's Plan. Elliot's "Debates," Vol. I, p. 474. 



150 SECESSION AND CONSTITUTIONAL LIBERTY 

ciples, would be to suppose them to be not only destitute of 
honor and probity, but void of reason — not only bad, but 
mad men." * 

"By requiring only a majority to make all commercial and 
navigation laws, the five Southern States (whose produce 
and circumstances are totally different from those of the 
eight Northern and Eastern States) will be ruined; for such 
rigid and premature regulations may be made, as will enable 
the merchants of the Northern and Eastern States not only 
to demand an exorbitant freight, but to monopolize the pur- 
chase of the commodities, at their own price, for many years, 
to the great injury of the landed interest, and the impoverish- 
ment of the people; and the danger is the greater, as the gain 
on one side will be in proportion to the loss on the 
other. . . .." f 

"In this Congressional legislature, a bare majority of votes 
can enact commercial laws; so that the representatives of the 
seven Northern States, . . . can, by law, create the most 
oppressive monopoly upon the five Southern States, whose cir- 
cumstances and productions are essentially different from 
theirs. . . . " $ 

"An opinion has prevailed that the southern states will be 
sacrificed to the eastern, and in some degree to the middle 
states, by the plan of manufacturers." § 

"He must be short-sighted indeed who does not foresee, 
that, whenever the Southern States shall be more numerous 
than the Northern, they can and will hold a language that will 
awe them into justice. If they threaten to separate now in 
case injury shall be done them, will their threats be less urgent 
or effectual when force shall back their demands? Even in 
the intervening period there will be no point of time at which 
they will not be able to say, Do us justice, or we will sep- 
erate." || 

"If there was real danger, I would give the smaller states 

* Innes, in Virginia Ratifying Convention. 

t George Mason's objections. 

t Richard Henry Lee's Letter. 

§ Tench Coxe, "View of the United States," p. 294; Phila., 1794. 

|| King, in Elliot's "Debates," Vol. V, p. 304 



APPENDIX 2 151 

the defensive weapons. But there is none from that quarter. 
The great danger to our general government is the great south- 
ern and northern interest of the continent being opposed to 
each other. Look to the votes in Congress, and most of them 
stand divided by the geography of the Country, not according 
to the size of the states." * 

"The Northern interest is all prevalent; their members are 
firmly united, & carry many measures disadvantageous to the 
Southern interest. They are laboring hard to get Vermont 
established as an independent State, which will give them 
another vote, by which the balance will be destroyed. In the 
midst of these great struggles between the Northern & South- 
ern interests . . ." f 

"Mr. Pinckney replied that his enumeration meant the five 
minute interests. It still left the two great divisions of north- 
ern and southern interests." X 

"And that his constituents, though prejudiced against the 
Eastern States, would be reconciled to this liberality. He had 
himself, he said, prejudices against the Eastern States before 
he came here, but would acknowledge that he had found them 
as liberal and candid as any men whatever." § 

"But his reasoning was not only inconsistent with his 
former reasoning, but with itself. At the same time that he 
recommended this implicit confidence to the Southern states 
in the northern majority . . . " fl 

"The States, he said, had different interests. Those of the 
Southern . . . were different from the Northern. " || 

"The President and 7 senators, as nearly as I can remem- 
ber, can make a treaty which will be of great advantage to the 
Northern States, and equal injury to the Southern States." ** 

♦Madison, in Elliot's "Debates," Vol. I, p. 465- 

t Letter of 1782. MacRea's "Life of James Iredell," Vol. II, p. 10. 

$ Madison's Debates, Elliot's "Debates," Vol. V, p. 489. 

§ Elliot's "Debates," Vol. V, p. 489. 

|| Madison, in Madison's Debates, Elliot's "Debates," Vol. V, p. 298. 

i General Pinckney, in Madison's Debates, Elliot's "Debates," Vol. V, 
pp. 242, 270. 

** Porter's speech in Debates of North Carolina, Elliot's "Debates," Vol. 
IV, p. 115. 



152 SECESSION AND CONSTITUTIONAL LIBERTY 

"If the government is to be lasting, it must be founded in 
the confidence and affections of the people; and must be so 
construed as to obtain these. The majority will be governed 
by their interests. The Southern States are the minority in 
both houses. Is it to be expected that they will deliver them- 
selves, bound hand and foot, to the Eastern States/' etc. * 

"But, sir, a great deal has been said about the amendments. 
Here again I refer to the debates. Such has been said to have 
been the past prevalence of the Northern States in Congress, 
the sameness of interest in a majority of the States, and their 
necessary adhesion to each other, that I think there can be 
no reasonable doubt of the success of any amendments pro- 
posed by Massachusetts."! 

"We shall then be taxed by those who bear no part in the 
taxes themselves, and who consequently will be regardless of 
our interest in imposing them upon us. The efforts of our 
ten men will avail very little when opposed by the northern 
majority/' etc. J 

"How can the southern members prevent the adoption of 
the most oppressive mode of taxation in the Southern States, 
as there is a majority in favor of the Northern States?" § 

"But we are told that we have everything to fear from the 
Northern States, because they will prevent an accession of 
states to the south. The policy of states will sometimes 
change. This is the case with those states, if, indeed, they 
were enemies to the right; and therefore, as I am informed 
by very good authority, Congress has admitted Kentucky, as 
a state, into the Union. Then the law of nations will secure 
it to them, as the deprivation of territorial rights is obviously 
repugnant to that law." || 

"This contest of the Mississippi involves this great national 
contest; that is, whether one part of the continent shall govern 
the other. The Northern States have the majority, and will 

* Madison, in Madison's Debates, Elliot's "Debates," Vol. V, p. 490. 
t Symes, in Massachusetts Ratifying Convention. 
. t Henry, in Virginia Ratifying Convention, Vol. Ill, p. 327. 
§ Ibid. 
|| Nicholas, in Virginia Ratifying Convention. 



APPENDIX 2 153 

endeavor to retain it. This is, therefore, a contest for domin- 
ion — for empire." * 

"I confirmed him [i. e., Washington] in the fact of the 
great discontents to the south ; that they were grounded on see- 
ing that their judgments and interests were sacrificed to those 
of the eastern States on every occasion." f 

"A gentleman has said, with great force, that there is a 
contest for empire. There is also a contest for money. The 
states of the north wish to secure a superiority of interest and 
influence. In one part their deliberation is marked with wis- 
dom, and in the other with the most liberal generosity. When 
we have paid all the gold and silver we could to replenish 
the congressional coffers, here they ask for confidence. Their 
hands will be tied up. They cannot merit confidence. Here is 
a transfer from the old to the new government, without the 
means of relieving the greatest distresses which can befall the 
people. This money might be scaled, sir; but the exclusion 
of ex post facto laws, and the laws impairing the obligation 
of contracts, steps in and prevents it. These were admitted 
by the old Confederation. There is a contest for money as 
well as empire, as I have said before. The Eastern States 
have speculated chiefly in this money. As there can be no 
congressional scale, their speculations will be extremely profit- 
able. Not satisfied with a majority in the legislative councils, 
they must have all our property. I wish the southern genius 
of America had been more watchful." % 

"Mr. Grayson. Mr. Chairman : it appears to me, sir, under 
this section, there never can be a southern state admitted into 
the Union. There are seven states, which are a majority, and 
whose interest it is to prevent it. The balance being actually 
in their possession, they will have the regulation of com- 
merce, and the federal ten miles square wherever they please. 
It is not to be supposed, then, that they will admit any south- 
ern state into the Union, so as to lose that majority." 2 A § 

"Much is said about treaties. I do not dread this so much 

* Grayson, in Virginia Ratifying Convention, 
t Jefferson, "The Anas." 
% Henry, in Virginia Ratifying Convention. 
§ Virginia Ratifying Convention. 



154 SECESSION AND CONSTITUTIONAL LIBERTY 

as what will arise from the jarring interests of the Eastern, 
Southern, and the Middle States. They are different in soil, 
climate, customs, produce, and every thing. Regulations will 
be made evidently to the disadvantage of some part of the 
community, and most probably to ours." * 

Mr. Butler "differed from those who considered the rejec- 
tion of the motion as no concession on the part of the Southern 
States. He considered the interest of these and of the East- 
ern States to be as different as the interests of Russia and 
Turkey." f 

"The States having ports for foreign commerce taxed & 
irritated the adjoining states trading thro' them, as N. Y. 
Pena. Virga. & S. Carolina. Some of the States, as Connecti- 
cut, taxed imports as from Massts. higher than imports even 
from G.B. ... In sundry instances as of N.Y. N.J. Pa. & 
Maryd. . . . the navigation laws treated the Citizens of other 
States as aliens. 

"In certain cases the authy. of the Confederacy was disre- 
garded, as in violation not only of the Treaty of peace ; but of 
Treaties with France & Holland ... In other cases the 
Fedl. authority was violated by Treaties & wars with Indians, 
as by Geo. : by troops, raised & kept up witht. the consent of 
Congs. as by Massts. ; by compacts witht. the consent of Congs. 
as between Pena. and N. Jersey and between Virga. & 
Maryd." etc. X 

"Washington, Hamilton, and Pinckney depended for the 
support of their power and the system of their politics entirely 
on N. Y. & Pena. The northern & the southern States were 
immovably fixed in opposition to each other." § 

"It appears possible, and not very improbable, that the time 
might come, when by greater cohesion, by more unanimity, 
by more address, the Representatives of one part of the Union 
might attempt to impose unequal taxes, or to relieve their 

* Bloodworth, in North Carolina Ratifying Convention, Elliot, Vol. IV, 

P- 135- 

t August, 1787. Elliot, Vol. V, p. 490. 

$ Madison's Preface to "Debates in Convention of 1787." 

§ J. Adams to James Lloyd, February 11, 1815. 



APPENDIX 2 155 

constituents at the expense of other people. To prevent the 
possibility of such a combination, the articles that I have men- 
tioned were inserted in the Constitution. . . . 

"Perhaps the case I have put is too strong — Congress can 
never do a thing that is so palpably unjust — but this, sir, is 
the very mark at which the theory of bounties seems to point. 
The certain operation of that measure is the oppression of 
the Southern States, by superior numbers in the Northern in- 
terest. This was to be feared at the formation of this Gov- 
ernment/ ' etc.* 

These indications of "old, unhappy, far-off things" (and 
the debates of the various Ratifying Conventions, etc., afford 
a vast store of similar matter) are cited not without a pur- 
pose ; a modern school of writers, — with or without intention, 
— belittles these original differences between the States (e. g., 
Professor McLaughlin, Appendix 40). 

Even Mr. Max Farrand, whose familiarity with the Con- 
ventional records may not be doubted, says : 

"In view of subsequent developments in this country, it is 
not surprising that historical writers have very generally over- 
emphasized the differing interests of north and south in the 
convention." f 

Mr. Charles Francis Adams, who even enhances this ani- 
mosity, — 

"Each one of the thirteen original provinces asserted its 
sovereignty — loudly proclaimed itself a nation. The provin- 
cialism was intense; the mutual jealousies, dislikes, and aver- 
sions only short of racial, were quite as pronounced as those 
which formerly led to the downfall of the Achaian league, 
or as more recently excited in the four British nationalities; 
for Saxon never disliked or despised Gael or Celt more than 
did Carolinians the Yankee," etc. % — can yet hold the opinion 
developed in other parts of the same essay. 

* Hugh Williamson, in House of Representatives, January 24, 1792. 
t "The Framing of the Constitution," p. 108 ; 1913. 
t "Trans-Atlantic Historical Solidarity," "Principia," pp. 37-3%; Ox- 
ford, 1913. 



156 SECESSION AND CONSTITUTIONAL LIBERTY 

New England has herself always been foremost in pro- 
claiming the difference between herself and other States. 
2 B. (v. p. 410, vol. 2). 

Comparisons are always odious, and, as between nations 
or states are mostly silly. Therefore it is not here purposed 
to discuss this matter. It is, nevertheless, apt to point out 
certain overt manifestations of these New England character- 
istics. New England was first, — most persistent, and for the 
slightest causes,— in asserting not merely the doctrine, but 
the practice of secession, as will be hereinafter shown. In 
New England, alone in these United States, was there ever 
organized religious persecution [a curious instance. "In 1693 
a meteor appeared, and therefore a fresh persecution of the 
Baptists and Quakers was promoted," etc.] ; * it was the only 
section in which witchcraft ever was believed in as a course 
of action. While the dull and plodding Pennsylvania jury be- 
fore which an old woman was first accused of witchcraft 
(in 1683) promptly "brought her in guilty of having the 
common fame of a witch, but not guilty," etc., thereby com- 
pletely quashing the craze, in New England, down at least to 
the nineteenth century, the inhabitants used to guard them- 
selves by "witch fenders," i. e., pieces of tin and so on, hung 
about their houses. f 

Coming down to our own times, the New England hysteria 
of abolition may well be considered as in line with her treat- 
ment of Rhode Island, Virginia, and the Friends, her various 
cults as twentieth century analogies of the witch craze; while 
a superiority in certain undesirable forms of criminality over 
the more illiterate States, as marked as her superiority in 
number of "free" schools and libraries, seems to continue the 
tradition of some of her earliest criminal trials. 

In short, there is still a difference between the various States 
of the Union. Is it consistent with freedom, to have one law 
covering all the functions of such diverse communities? Is 
standardization, in spite of its convenience, always desirable? 

* Penna. Mag. of Hist., Vol. I, p. 2,72. Dr. Wm. Shippen. By T. Balch. 
t Vide "Commercial Advertiser," Monday, October 2, 1797; "The Tick- 
ler." 



APPENDIX 3 157 

"Jack Sprat could eat no fat, his wife could eat no lean," so 
they lived happily forever afterward, not quarrelling for the 
choice bits. Even a German (nay, two Germans) has been 
able to perceive this ; e. g., "Here let us heed Treitschke's warn- 
ing when he says The idea of one universal empire is odious. 
The ideal of a State co-extensive with humanity is no ideal at 
all. In a single State the whole range of culture could never 
be fully spanned/ " Baron von Freytag-Loringhoven, De- 
ductions from the World War. N. Y., 19 18. 

APPENDIX 2K 

{Page 152) 

This is another verified prophecy, fulfilled in the long dis- 
pute beginning with the obstruction to the admission of Mis- 
souri and continuing until the War between the States. Not 
infrequently avowed as a principle of action by Northern 
speakers, and States.* 

APPENDIX 3 

{Page 26) 

"In order to determine whether the United States meant by 
the term union, to establish a supreme power or a limited 
association, we must commence our inquiry at their political 
birth, and accommodate our arguments with the principles 
they avowed in proclaiming their political existence. These 
are stated in the declaration of independence: We the rep- 
resentatives of the United States of America, in general Con- 
gress assembled, appealing to the Supreme Judge of the world, 
for the rectitude of our intentions, do, in the name and by the 
authority of the good people of these colonies, solemnly pub- 
lish and declare, that these United Colonies are, and of right 
ought to be, free and independent states; and that as free and 
independent states, they have full power to levy war, conclude 

* E.g., J. Q. Adams, "On Admission of Louisiana" ; Resolves of Massa- 
chusetts, March 26, 1845, etc., etc. 



158 SECESSION AND CONSTITUTIONAL LIBERTY 

peace, contract alliances, establish commerce, and do all other 
acts and things, which independent states may of right do/ 
Such is the origin of our liberty, and the foundation of our 
form of government. The consolidating project ingeniously 
leaves unexamined the arguments suggested by this declara- 
tion, and commences its lectures at the end of the subject to 
be considered. If the declaration of independence is not obli- 
gatory, our entire political fabrick has lost its magna charta, 
and is without any solid foundation. But if it is the basis of 
our form of government, it is the true expositor of the prin- 
ciples and terms we have adopted. The word 'united' is used 
in conjunction with the phrase 'free and independent states/ 
and this association recognises a compatibility between the 
sovereignty and the union of the several states. The regula- 
tion of commerce is enumerated among the rights of sov- 
ereignty, and this right having been exercised by each state 
under their first confederation, because it was not surrendered, 
is an evidence of what was meant by the sovereignty of the 
states, and a proof that the separate sovereignty of each, and 
not a consolidated sovereignty of all, was established by the 
declaration of independence. The same observation applies 
to the sovereign rights of the states, not surrendered by the 
existing federal constitution. Take from the states the politi- 
cal character they assumed by the declaration of independence, 
and they could not have united. To contract, to stipulate, to 
unite, are among the 'acts and things which independent states 
may of right do/ The first confederation or union recognises 
the compatibility between the union and the sovereignty of the 
states. The existing union adheres to the same idea, professes 
to establish a more perfect union of states created by the 
Declaration of Independence, and contains many provisions 
incapable of being executed except by state sovereignty. It 
uses the words 'United States/ taken by the first confederation 
from the declaration of independence, and transplanted from 
both these instruments, in which they are associated with posi- 
tive assertions of the independence and sovereignty of each 
state ; and therefore the last instrument, like the others, recog- 



APPENDIX 4 159 

nises the compatibility between the union and the sovereignty 
of the several states. 

"The notion that the 'freedom and independence of the 
states' refers to a consolidation of states, admits of a perfect 
refutation. It would render the language of the declaration of 
independence ungrammatical, because had this been intended, 
it ought to have recognised the rights of sovereignty as resid- 
ing in one consolidated state, and not in several states." * 



APPENDIX 4 
{Page 27) 

"Mr. Martin (of Maryland) said he considered that the 
separation from Great Britain placed the thirteen states in a 
state of nature towards each other; that they would have 
remained in that state till this time, but for the Confederation ; 
that they entered into the Confederation on the footing of 
equality ; that they met now to amend it, on the same footing ; 
and that he could never accede to a plan that would introduce 
an inequality, and lay ten states at the mercy of Virginia, 
Massachusetts, and Pennsylvania. 

"Mr. Wilson (of Pennsylvania) could not admit the doc- 
trine that, when the colonies became independent of Great 
Britain, they became independent also of each other. He read 
the Declaration of Independence, observing thereon, that the 
United Colonies were declared to be free and independent 
states, and inferring that they were independent, not indi- 
vidually but unitedly and that they were confederated, as they 
were independent states." f 

So far as the writer is aware, the only other noteworthy 
contemporary supporter of this doctrine was Gen. Charles 
Cotesworth Pinckney. 4A 

On January 18, 1788, in the Ratifying Convention of South 
Carolina, this gentleman said : 

* John Taylor's "New Views of the Constitution," pp. 2, 3 ; 1823. 
t Debates in Federal Convention, June, 1787. 
I— 11 



160 SECESSION AND CONSTITUTIONAL LIBERTY 

"... I mean the Declaration of Independence, made in 
Congress the 4th of July, 1776.* This admirable manifesto, 
which, for importance of matter and elegance of composition, 
stands unrivalled, sufficiently refutes the honorable gentle- 
man's doctrine of the individual sovereignty and independence 
of the several States. 

"In that Declaration the several states are not even enumer- 
ated; 45 but . . . the declaration is made in the following 
words: . . . The separate independence and individual sov- 
ereignty of the several states were never thought of by the 
enlightened band of patriots who framed this Declaration," 
etc. 40 

Judge Story, adding a little to this theory, says : 

"In the first place, antecedent to the declaration of inde- 
pendence, none of the colonies were, or pretended to be, sov- 
ereign states, ... In the next place, the colonies did not 
severally act for themselves, and proclaim their own inde- 
pendence. . . . But the declaration of independence of all 
the colonies was the united act of all . . . it was em- 
phatically the act of the whole people of the united colonies, 
by the instrumentality of their representatives." f 

Against these assertions of Mr. Wilson and Mr. Pinckney 
may be set the assertions of Mr. Pinckney and Mr. Wilson. In 
the Pennsylvania Ratifying Convention, Mr. Wilson said: 

"The difficulty of the business [i e., framing the Constitu- 
tion] was equal to its magnitude. No small share of wisdom 
and address is requisite to combine and reconcile the jarring 
interests that prevail, or seem to prevail, in a single commun- 
ity. The United States contain already thirteen governments 
mutually independent/ ' 

In the same Convention he said : 

"To frame a government for a single city or State is a 
business . . . widely different from the task entrusted to 
t "Commentaries." 



APPENDIX 4 161 

the Federal Convention, whose prospects were extended not 
only to thirteen independent and sovereign states," etc. 

In the Federal Convention, August 30, Mr. Wilson again 
remembered the independence of the several States. Debat- 
ing the question of the number of States whose consent might 
validate the proposed frame of government, Mr. Madison 

"remarked that if the blank should be filled with 'seven/ 
'eight,' or 'nine,' the Constitution, as it stands, might be put 
in force over the whole body of the people, though less than 
a majority of them should ratify it. 

"Mr. Wilson. As the Constitution stands, the states only 
which ratify can be bound. We must, he said, in this case, 
go to the original powers of society." 

"When the measure [the Declaration of Independence] be- 
gan to be an object of contemplation in Congress, the Dele- 
gates of Pennsylvania were expressly restricted from consent- 
ing to it. My uniform language in Congress was, that I never 
would vote for it contrary to my instructions. I went further, 
and declared that I never would vote for it, without your 
authority. . . . When your authority was communicated 
... I then stood upon very different grounds . . . And 
was I to be blamed ? Should this act have been the act of four 
or five individuals? Or should it have been yours? ... I 
took the oath of allegiance to the state . . . For I thought 
it . . . necessary to draw a known line between those who 
were determined to support the independence of the state, 
and those who were not. I have engaged to receive the 
money lately emitted by this state as gold and silver . . . 
My country [Pennsylvania], however, did not," etc.* 

Quotations from Mr. Wilson's speeches to the same point 
might be multiplied. But enough has been given to show 
either that, whatever the weight of his authority, it may be 
cited to the one opinion as to the other, and is therefore value- 
less; or that, in some unknown way, the States, which had 

* Letter of James Wilson to the Citizens of Pennsylvania. Pennsyl- 
vania Journal, October 18, 1780. 



162 SECESSION AND CONSTITUTIONAL LIBERTY 

no separate independence by the Declaration of Independence, 
had gained it before the framing of the Constitution. 

Mr. Charles C. Pinckney, speaking in the South Carolina 
Ratifying Convention, likewise appears to have forgotten his 
doctrine that the States were not severally independent, but 
an amalgamated body. 

"... The present Constitution is but a proposition which 
the people [viz.: of South Carolina] may reject; but he con- 
jured them to reflect seriously before they did reject it, as he 
did not think our state would obtain better terms by another 
convention. . . . Every member who attended the Conven- 
tion was . . . sensible of the necessity of giving greater 
powers to the federal [note the phrase] government . . . 
and I confess I did not expect we had conceded too much to 
the Eastern States, when ... Is there any one among us 
such a Quixote as to suppose that this state could long main- 
tain her independence if she stood alone, or was only con- 
nected with the Southern States ? . . . Reflect for a moment 
on the situation of the Eastern States. . . . They can enjoy 
their independence without our assistance. If our government 
is to be founded on equal compact, what inducement can they 
possibly have to be united with us without having these privi- 
leges . . . it is admitted on all hands, that the general gov- 
ernment has no powers but what are expressly granted by the 
Constitution, and that all rights not expressed were reserved 
by the several states," etc. 

Is it possible to reconcile this speech wherein he speaks 
of the separate independence of South Carolina (and that of 
the Eastern States) ; of its powers of accepting, or rejecting, 
the proposed compact; where he refers to the several States 
granting certain powers to a federal government, and reserv- 
ing others to themselves, of their forming "a compact," with 
his before-quoted assertion that the several states were, prior 
to that compact, not independent units, but already unified? 

Again, arguing in favour of the right of the states to abro- 
gate the Confederation, he says: 



APPENDIX 4 163 

"The honorable gentleman says compacts should be binding 
and that the Confederation was a compact. It was so; but 
it was a compact that had been repeatedly broken by every 
state in the Union, and all the writers on the law of nations 
agree that, when the parties to a treaty violate it, it is no longer 
binding.' ' 

How could the States enter into treaties and compacts when 
already one people ? 

But individual opinion is not proof in such matters, it is 
merely illustrative, corroborative, or explanatory; as such, 
being participants in the actions, the meaning of which is in 
question, it has been thought proper to show by their own 
words the unsubstantiality of that of Mr. Wilson and General 
Pinckney. 

Lacking this ground of importance, Judge Story's opinion 
is here only cursorily noted. His statement that, "In the first 
place, antecedent to the declaration of independence none of 
the colonies were, or pretended to be, sovereign States," is 
amply borne out by the Declaration itself. It is not perceived, 
however, that it has any bearing in support of the conse- 
quences he would deduce. When he states that "in the next 
place, the colonies did not severally act for themselves, and 
proclaim their own independence," their official proceedings 
show, as will be seen, a different opinion on their part, an 
opinion in harmony with the belief of the people of the 
States; e. g.: 

"In June, 1776, the convention of Virginia formally de- 
clared that Virginia was a free, sovereign and independent 
state; and on the fourth of July, 1776, following, the United 
States, in Congress assembled, declared the thirteen United 
Colonies free and independent states ... I consider this as 
a declaration not that the United Colonies jointly, in a collec- 
tive capacity, were independent states, but that each of them 
had a right to govern itself by its own authority, and its own 
laws, without any control from any other power on earth 
... I have ever considered it as an established doctrine 
of the United States . . . that all laws made by the legisla- 



164 SECESSION AND CONSTITUTIONAL LIBERTY 

na- 
tures of the several states after the Declaration of Independ- 
ence, were the laws of sovereign and independent govern- 
ments." * 

"On the 15th, the pilgrims assembled at the Raleigh, in the 
very room where the Declaration of Independence had been 
digested and drafted by the committee of the Convention . . . 
The Declaration of Virginian Independence having been read 
the following toasts were given . . . 

"1st toast. The 15th of May, 1776. The day on which 
the Convention of Virginia assembled in the old Capitol, in 
this city, and gave birth to the first independent American 
Republic/ 

"2d toast. The virtuous, the enlightened, the patriotic 
Convention of the State of Virginia. That body which, with 
one voice, dared to declare their country Independent, and to 
propose a similar declaration to their sister States/ . . . 

"7th toast. Thomas Jefferson — the Friend of Man; His 
pen first traced . . . the declaration of the Independence of 
the United States.' ... 

"14th toast. To the memory of Edmund Pendleton, Presi- 
dent of that Convention which raised his country to the rank 
of an Independent State.' " f 

It is to be noted that, while these gentlemen speak of the 
separate independence of their country, Virginia, in unmistak- 
able terms; they also use the phrase "independence of the 
United States" ; a plain demonstration that the "United 
States" in this sense was the equivalent of the several States. 

"Mr. Barbour observed . • . . In 1776, the thirteen United 
States, then the Colonies of America, after having been lacer- 
ated to the midriff by the vulture fangs of British persecu- 
tion, threw off their Colonial subjugation, and took a stand 
amongst the Nations of the earth. At this time, there were 

. * Justice Chase, in Ware vs. Hylton, Dallas, 3 1224, 225. 
t Report of the Proceedings of the late Jubilee at James-Town, in com- 
memoration of . . . Together with the Proceedings at Williamsburg on 
the 15th, the day when the Convention of Virginia assembled in the old 
capitol declared her independent and recommended a similar procedure to 
Congress and to the other States. Petersburg, 1807. 



APPENDIX 4A 165 

thirteen independent Sovereignties tied together by the feeble 
bands of the Articles of Confederation. So long as the pres- 
sure of external danger was felt, so long the bond of union 
was found sufficiently strong. So long as all jealousies and 
rivalships were sacrificed on the altar of public good, the 
defects of that system were, in some measure, concealed. But, 
so soon as the pressure of foreign invasion was removed, so 
soon it was discovered that the system of union created by 
the Confederation was inadequate to the sublime purposes for 
which it was intended. The people of America saw and de- 
plored the situation with which they were menaced; and the 
Virginia Legislature, sensible of the jeopardy to which their 
well earned Liberties were exposed, were the first to recom- 
mend a Resolution in the Compact by which the States were 
connected, notwithstanding the senseless yell and malicious 
calumnies with which certain hireling papers to the East teem, 
of a disposition in this State to shake off the Union. Influ- 
enced by this spirit, the Convention met in the year 1786, in 
Annapolis; but broke up without doing any thing effectual. 
In the year 1787, the Convention which met in Philadelphia 
gave birth to the Federal Constitution." * 

APPENDIX 4 A 

(Page 159) 

Prof. McLaughlin, in "Social Compact and Constitutional 
Construction," says: * 

"I have already shown that some men believed that the 
states were not made independent of each other by declaring 
independence. See the speech of Pinckney before the South 
Carolina Convention." 

Prof. McLaughlin ignores Mr. Pinckney 's other speeches, 
here cited. * ' 

But, in fact, no men believed that the States were made 
independent of each other by declaring independence. They 

* Debates in House of Delegates of Virginia, December 17, 1798. 



166 SECESSION AND CONSTITUTIONAL LIBERTY 

were already independent of each other, and merely declared 
their independence in regard to Great Britain. Unless in some 
way that act unified them, they remained, — as they had been, — 
independent of each other. 

This is illustrated by Mr. Madison: he 

"Begged the smaller states to consider the situation in which 
they would remain, in case their pertinacious adherence to an 
inadmissible plan should prevent the adoption of any plan 
. . . Let the union of the states be dissolved, and one of 
two consequences must happen. Either the states must remain 
individually independent and sovereign ; or two or more con- 
federacies must be formed among them,' , etc.* 



APPENDIX 4B 
{Page 160) 

The Congress which acted under that Declaration in its 
official proceedings sometimes does not enumerate the States, 
using an equivalent abridgment : "The United States in Con- 
gress assembled." "His Britannic Majesty acknowledges the 
said United States, viz., New Hampshire [others named], . . . 
to be free, sovereign and independent states . . . Now know 
ye, that we the United States in Congress assembled . . . 
have approved, ratified and confirmed . . . the said arti- 
cles." f The two forms are thus used in the same instru- 
ment referring to precisely the same States; and so used (ac- 
cording to Mr. Pinckney's argument) in a very significant 
manner : i. e., when His Britannic Majesty acknowledges the 
independency of the States, each State is named; whereas the 
equivalent term, "the United States in Congress assembled/' 
is used for the ratification of the Treaty by the States-. Other 
instruments show the identically of the two forms. 

But more frequently it names the separate States as its 
authority, e. g.: 

♦June, 1787. Elliot's "Debates," Vol. V, p. 210. 

t Treaty of 1783. Journals of Congress, January 14, 1784. 



APPENDIX 4 B 167 

"In Congress. The delegates of the United States of New 
Hampshire, Massachusetts Bay [others named] ... to all 
unto whom these presents shall come," etc.f 

"In Congress. The delegates of the United States of New 
Hampshire, Massachusetts Bay, . . . [others named] . . . 
to," etc. X 

"The committee appointed to prepare the form of a ratifica- 
tion, brought in the same, which was read, and agreed to as 
follows : The Congress of the United States of New Hamp- 
shire, Massachusetts-Bay [others named], ... by the grace 
of God, sovereign, free and independent, . . . 

"Whereas . . . Benjamin Franklin . . . and Arthur 
Lee . . . were . . . appointed our commissioners ... to 
treat . . . with . . . the King of France . . . upon a . . . 
peace, for the defence ... of the subjects of his . . . 
Majesty and the people of the United States . . . ," etc. § 

If, therefore, Mr. Pinckney thought that the enumeration 
of the respective states would have been a point against his 
assertion, it was one that was made. Also it becomes evident 
that when Congress said : "We, therefore, the representatives 
of the United States of America in General Congress assem- 
bled ... do, in the name, and by authority of the good 
people of these colonies solemnly publish and declare," etc., 
they in effect and in intention stated themselves to be acting 
as "the representatives of the United States of America, viz., 
New Hampshire, Massachusetts Bay, etc." 

"As preliminary to the very able discussions of the con- 
stitution which we have heard from the bar, and as having 
some influence on its construction, reference has been made to 
the political situation of these states anterior to its forma- 
tion. It has been said, that they were sovereign, were com- 
pletely independent, and were connected with each other only 
by a league. This is true. But when these allied sovereigns 

t Form of Commission for Commanders of private Ships of War. 
Journals of Congress, May 8, 1777. 

t Form of Commission of Purchase, etc. Journals of Congress, July 
2, I777- 

§ Journals of Congress, May 5, 1778. 



i68 SECESSION AND CONSTITUTIONAL LIBERTY 

converted their league into a government, when they converted 
their congress of ambassadors, deputed to deliberate on their 
common concerns, and to recommend measures of general 
utility, into a legislature, empowered to enact laws on the most 
interesting subjects, the whole character in which the states 
appear underwent a change, the extent of which must be deter- 
mined by a fair consideration of the instrument by which that 
change was effected.' ' * 



APPENDIX 4 C 

{Page 160) 

It is strange,— it is passing strange, — this being so, that 
the gentleman to whom we owe the form of the Declaration 
repeatedly and consistently asserted the individual sovereignty 
and independence of the several States thereby declared, not 
merely at times when political action of moment depended 
upon such assertions (e. g., the Kentucky Resolutions), but 
when it was made merely incidentally, e. g., his letter to Chief 
John Baptist de Coigne of the Wabash and Illinois Indians : 

"This is the advice which has been always given by the 
great Council of the Americans, We must give the same, 
because we are but one of thirteen nations, who have agreed 
to act and speak together. These nations keep a Council of 
wise men always sitting together, and each of us separately 
follow their advice." * 

"The alliance between the States under the old Articles of 
Confederation, for the purpose of joint defence against the 
aggression of Great Britain, was found insufficient, as treaties 
of alliance generally are, to enforce compliance with their 
mutual stipulations; and these, once fulfilled, that bond was 
to expire of itself, and each State to become sovereign and 
independent in all things. Yet it could not but occur to every 
one that these separate independencies, like the petty States 

* Opinion of Judge Marshall, in Gibbons vs. Ogden. 
♦June, 1781. 



APPENDIX 4 C 169 

of Greece, would be eternally at war with each other, and 
would become at length the mere partisans and satellites of 
the leading powers of Europe. All then must have looked 
forward to some further bond of union which would insure 
eternal peace, and a political system of our own, independent 
of that of Europe. Whether all should be consolidated into 
a single government, or each remain independent as to internal 
matters, and the whole form a single nation as to what was 
foreign only, and whether that national government should be 
a monarchy or republic, would of course divide opinions ac- 
cording to the constitutions, the habits, and the circumstances 
of each individual/ ' f 

"We have had thirteen States independent for eleven years. 
There has been one rebellion. This comes to one rebellion in 
a century and a half to each State. What country before ever 
existed a century and a half without a rebellion." J 

The form of this absolutely forbids any supposition, when 
he speaks of rebellions against the several States, etc., that he 
is speaking of anything but thirteen States severally independ- 
ent. 

"The States in North America which confederated to estab- 
lish their independence of the government of Great Britain, 
of which Virginia was one, became, on that acquisition, free 
and independent States, and as such, authorized to constitute 
governments, each for itself, in such form as it thought 
best." * 

"I was on the spot, and can relate to you this transaction 
with precision. On the 7th of June, 1776, the delegates from 
Virginia moved, in obedience to instructions from their con- 
stituents, that Congress should declare the thirteen united 
colonies to be independent of Great Britain, that a confedera- 
tion should be formed to bind them together, and measures 
be taken for procuring the assistance of foreign powers. The 

f Jefferson's "Anas," edited by F. B. Sawvel, p. 26; 1903. 

$ Letter of November 13, 1787, quoted by Joseph P. Bradley in "The 
American Union and the Evils to which it has been Exposed," p. 123; 1851. 

* "Tefferson's Works" (Solemn Declaration and Protest of Virginia), 
Vol. IX, p. 496; N. Y., 1854. 



170 SECESSION AND CONSTITUTIONAL LIBERTY 

House ordered a punctual attendance of all their members the 
next day at ten o'clock, and then resolved themselves into a 
committee of the whole and entered on the discussion. It 
appeared in the course of the debates that seven States : viz., 
New Hampshire, Massachusetts, Rhode Island, Connecticut, 
Virginia, North Carolina and Georgia, were decided for a 
separation; but that six others still hesitated, to wit: New 
York, New Jersey, Pennsylvania, Delaware, Maryland, and 
South Carolina. Congress, desirous of unanimity, and seeing 
that the public mind was advancing rapidly to it, referred the 
further discussion to the first of July, appointing, in the mean- 
time, a committee, to prepare a declaration of independence, a 
second to form articles for the confederation of the States, 
and a third to propose measures for obtaining foreign aid. On 
the 28th of June, the Declaration of Independence was re- 
ported to the House, and was laid on the table for the con- 
sideration of the members. On the first day of July, they 
resolved themselves into a committee of the whole, and 
resumed the consideration of the motion of June 7th. It was 
debated through the day, and at length was decided in the 
affirmative by the vote of nine States: viz., New Hampshire, 
Massachusetts, Rhode Island, Connecticut, New Jersey, Mary- 
land, Virginia, North Carolina, and Georgia. Pennsylvania 
and South Carolina voted against it. Delaware, having but 
two members present, was divided. The delegates from New 
York declared they were for it, and their constituents also; 
but that the instructions against it which had been given them 
a twelvemonth before, were still unrepealed; that their con- 
vention was to meet in a few days, and they asked leave to 
suspend their vote till they could obtain a repeal of their 
instructions. Observe that all this was in a committee of the 
whole Congress, and that according to the mode of their pro- 
ceedings, the resolution of that committee to declare them- 
selves independent, was to be put to the same persons re- 
assuming their form as a Congress, It was now evening, the 
members exhausted by a debate of nine hours, during which 
all the powers of the soul had been distended with the magni- 
tude of the object — without refreshment, without a pause — 



APPENDIX 4C 171 

and the delegates of South Carolina desired that the final 
decision might be put off to the next morning, that they might 
still weigh in their own minds their ultimate vote. It was put 
off, and in the morning of the second of July they joined the 
other nine States in voting for it. The members of the Penn- 
sylvania delegation too, who had been absent the day before, 
came in and turned the vote of their State in favor of inde- 
pendence ; and a third member of the State of Delaware, who, 
hearing of the division in the sentiments of his two colleagues, 
had travelled post to arrive in time, now came in and decided 
the vote of that State also for the resolution. Thus twelve 
States voted for it at the time of its passage, and the delegates 
of New York, the thirteenth State, received instructions within 
a few days to add theirs to the general vote." * 

"It was argued by Wilson, Robert R. Livingston, E. Rut- 
ledge, Dickinson, and others, — That though they were friends 
to the measures themselves . . . yet they were against 
adopting them at this time . . . That the people of the 
middle colonies (Maryland, Delaware, Pennsylvania, the Jer- 
seys, and New York) were not yet ripe for bidding adieu to 
British connection, but that they were fast ripening, and in a 
short time would join in the general voice of America . . . 
That some of them had expressly forbidden their delegates to 
consent to such a declaration, and others had given no instruc- 
tions, and consequently no power to give such consent. That 
if the delegates of any particular colony had no power to 
declare such colony independent, certain they were the others 
could not declare it for them; the colonies being as yet per- 
fectly independent of each other . . . That if such a decla- 
ration should now be agreed to, these delegates must retire, 
and possibly their colonies might secede from the Union . . . 
It appearing in the course of these debates, that the colonies of 
New York (etc.) were not yet matured for falling from the 
parent stem, but that they were fast advancing to that state, 
it was thought most prudent to wait awhile for them, and 
to postpone the final decision to July 1st," etc.* 

* Jefferson, Letter to the Editor of the Journal de Paris, August 29, 
1787. "Jefferson's Works," Vol. IX, pp. 31Q-312; N. Y., 1854. 

* Thomas Jefferson. Elliot's "Debates," Vol. I, pp. 56, 57. 



172 SECESSION AND CONSTITUTIONAL LIBERTY 

"And with no body of men is this restraint more wanting 
than with the judges . . . they do not seem aware that it is 
not even a constitution formed by a single authority . . . but 
that it is a compact of many independent powers," etc. f 

The other members of the Committee on the Declaration 
at various times made statements quite inconsistent with Mr. 
Pinckney's opinions : e. g., Franklin % a decade later, likened 
the relations between the States to those between the different 
states of Europe ; in Convention he also suggested the form : 
"Done in Convention by the unanimous consent of the States 
present," etc. 

Mr. John Adams when President, in his first Inaugural to 
Congress, stated that at the time of the Confederation, half 
a dozen years later than the Declaration, it was seen that a 
permanent bond of union was not then entered upon.§ 

In January, 1776, the delegates of North Carolina were 
authorized by the colonial legislature, to apply to Mr. Adams 
for his views of the nature of the government it would be 
proper to form, in case of a final dissolution of the authority 
of the Crown. The following letter, addressed to Mr. John 
Penn, one of the number, was the reply: 

"It has been the will of Heaven that we should be thrown 
into existence at a period when the greatest philosophers and 
lawgivers of antiquity would have wished to live. A period 
when a coincidence of circumstances without example, has 
afforded to thirteen Colonies, at once, an opportunity of begin- 
ning government anew from the foundation, and building as 
they choose. ... 

"In the present exigency of American affairs, when, by an 
Act of Parliament, we are put out of the royal protection, and 
consequently discharged from all obligations of allegiance; 
and when it has become necessary to assume governments for 
immediate security, the governor, lieutenant-governor, secre- 
tary, treasurer, and attorney-general, should be chosen by joint 
ballot of both houses. . . . 

t Jefferson, Letter to G. Livingston, March 25, 1825. 

$ Appendix 1. 

§ Vide Appendix 9. 



APPENDIX 4C 173 

"Let indictments conclude : 'against the peace of the Colony 
of North Carolina, and the dignity of the same', or if you 
please : 'against the peace of the Thirteen United Colonies.' 

"We have heard much of a continental constitution ; I see no 
occasion for any but a congress. Let that be made an equal 
and fair representative of the Colonies; and let its authority 
be confined to three cases, — war, trade, and controversies be- 
tween colony and colony. If a confederation was formed, 
agreed on in Congress, and ratified by the assemblies, these 
Colonies, under such forms of government and such a confed- 
eration, would be unconquerable by all the monarchies of 
Europe." * 

In his letter to Gen. Gates, on March 23, 1776, he says: 

"I know not whether you have seen the act of parliament, 
called the restraining act, or piratical act, or plundering act, 
or act of independency, for by all these titles it is called. I 
think the most apposite is, the act of independency. For 
king, lords, and commons have united in sundering this coun- 
try from that, I think, forever. It is a complete dismember- 
ment of the British empire. It throws thirteen colonies out 
of the royal protection, levels all distinctions, and makes us 
independent in spite of our supplications and entreaties. It 
may be fortunate that the act of independency should come 
from the British parliament, rather than the American con- 
gress; but it is very odd that Americans should hesitate at 
accepting such a gift from them. 

"However, my dear friend Gates, all our misfortunes arise 
from a single source, the reluctance of the southern colonies 
to republican government. The success of this war depends on 
a skilful steerage of the political vessel. The difficulty lies in 
forming particular constitutions for particular colonies, and 
a continental constitution for the whole. Each colony should 
establish its own government, and then a league should be 
formed between them all." f 

* "Works of John Adams," edited by C. F. Adams, Vol. IV, pp. 203-208. 
f "Works of John Adams," edited by C. F. Adams, Vol. I, p. 207. 



174 SECESSION AND CONSTITUTIONAL LIBERTY 

In the debates in Congress, 1776, he moved that, " 

"Whereas the present state of America, and the cruel efforts 
of our enemies, render the most perfect and cordial union of 
the Colonies, and the utmost exertions of their strength, neces- 
sary for the preservation and establishment of their liberties, 
therefore, 

"Resolved, That it be recommended to the several Assem- 
blies and Conventions of these United Colonies, who have 
limited the powers of their delegates in this Congress, by any 
express instructions, that they repeal or suspend those instruc- 
tions for a certain time, that this Congress may have power, 
without any unnecessary obstruction or embarrassment, to 
concert, direct, and order such further measures as may seem 
to them necessary for the defence and preservation, support 
and establishment of right and liberty in these Colonies." 
("This is perhaps the first draught of the well known motion 
made in Committee of the Whole, on the sixth of May, which 
was reported to the House, on the tenth, in the shape in which 
it appears extracted from the Journal of that day.")* 

"I constantly insisted that all such measures, instead of hav- 
ing any tendency to produce a reconciliation, would only be 
considered as proofs of our timidity and want of confidence 
in the ground we stood on, and would only encourage our 
enemies to greater exertions against us; that we should be 
driven to the necessity of declaring ourselves independent 
States, and that we ought now to be employed in preparing 
a plan of confederation for the Colonies." f 

"In the beginning of May, I procured the appointment of 
a committee, to prepare a resolution recommending to the peo- 
ple of the States to institute governments. The committee, of 
whom I was one, requested me to draught a resolve, which I 
did, and by their direction reported it. Opposition was made 
to it, and Mr. Duane called it a machine to fabricate independ- 
ence, but on the 15th of May, 1776, it passed. It was indeed, 
on all hands, considered by men of understanding as equivalent 

* Works of J. Adams, edited by C. F. Adams, Vol. II, p. 489. 
t Adams's "Autobiography," ibid., Vol. II, p. 503. 



APPENDIX 4C 175 

to a declaration of independence, though a formal declaration 
of it was still opposed by Mr. Dickinson and his party. 

"Not long after this, the three greatest measures of all were 
carried. Three committees were appointed, one for preparing 
a declaration of independence, another for reporting a plan 
of a treaty to be proposed to France, and a third to digest 
a system of articles of confederation to be proposed to the 
States. I was appointed on the committee of independence, 
and on that for preparing the form of a treaty with France." £ 

APPENDIX 4^ 

{Page 30) 

An ORDINANCE of the STATE OF PENNSYL- 
VANIA, Declaring what shall be TREASON, and for Pun- 
ishing the same, and other Crimes and Practices against the 
State. 

Whereas Government ought at all Times to take the most 
effectual Measures for the Safety and Security of the State, 
BE IT THEREFORE ORDAINED and DECLARED, and 
it is hereby ORDAINED and DECLARED, the Representa- 
tives of the Freemen of the State of Pennsylvania, in General 
Convention met, That all and every Person and Persons (ex- 
cept Prisoners of War) now inhabiting or residing within 
the Limits of the State of Pennsylvania, or that shall volun- 
tarily come into the same hereafter, to inhabit or sojourn, DO 
and shall owe and pay Allegiance to the State of Pennsylvania. 

AND BE IT FURTHER ORDAINED, by the Authority 
aforesaid, That all and every such Person and Persons, so 
owing Allegiance to the State of Pennsylvania, who, from 
and after the Publication hereof, shall levy War against this 
State, or be adherent to the King of Great Britain, or others 
the Enemies of this State, or to the Enemies of the United 
States of America, by giving him or them Aid or Assistance 
within the Limits of this State, or elsewhere, and shall be 

$ Adams's Autobiography, Vol. II, p. 510. Vide also Appendix 6: 
"The Constitution of Massachusetts," framed by Mr. Adams. 
1—12 



176 SECESSION AND CONSTITUTIONAL LIBERTY 

thereof duly convicted in any Court of Oyer and Terminer 
hereafter to be erected, according to Law, shall be adjudged 
guilty of HIGH TREASON, and forfeit his Lands, Tene- 
ments, Goods and Chattels, to the Use of the State, and be 
imprisoned any Term not exceeding the Duration of the 
present War with Great-Britain, at the Discretion of the Judge 
or Judges. . . . 

Passed in CONVENTION, September 5th, 1776, and 
signed by their Order, 

B. FRANKLIN, President. 



APPENDIX 5 
(Page 33) 

Vide the Remonstrance of New Hampshire, January 16, 
1795, where this point is also made : viz.: 

"... caused the adoption of the present constitution — an 
adoption totally unnecessary in point of principle, if the 
claims of former Congressional power are established." 

"The notion that the 'freedom and independence of the 
states' refers to a consolidation of states . . . would ren- 
der the language of the declaration of independence ungram- 
matical ... It would have rendered the confederation un- 
necessary; because, had the declaration of independence in- 
vested a consolidation of states with a power to do 'all acts 
and things which a free and independent state may of right 
do/ there would not have existed the least reason for delegat- 
ing powers to a federal Congress. It would have divested 
each province or state of the right to make and alter its own 
constitution and its own laws; and it would have converted 
the exercise of any sovereign power by a state, subsequently 
to the declaration of independence, into usurpation. 5 ' * 

♦John Taylor, of Caroline, "Views of the Constitution," p. 3; 1823. 



APPENDIX 6 177 

APPENDIX 6 

{Page 34) 

The logic of Judge Baldwin seems so convincing that mere 
expressions of opinion from other writers are unnecessary. 
Appended, however, is an opinion of a recent writer on the 
subject, and one of a distinguished foreign historian. 

"When the sovereignty of Great Britain over the American 
Colonies was thrown off, it was thought that in the change 
from colonial dependence to a state of independence the 
authority of the British Parliament had been transferred to 
the legislatures of the colonies. The declaration in the bills 
of rights of the constitutions of 1776 indicate the general belief 
in this transfer of power." * 

"In the American Confederation, which was formally 
adopted by the thirteen States in 1781, . . . the Congress 
.... was invested with very small powers, and was almost 
as completely overshadowed by the State rights of its con- 
stituents as the Cromwellian House of Commons had been by 
the military powers of the Commonwealth." f 

Indeed, the contemporary testimony leaves no ground for 
honest and rational disbelief on this point.:): 

"Resolved, That Congress is composed of delegates chosen 
by, and representing, the communities respectively inhabiting 
the territories of New-Hampshire, Massachusetts-Bay, Rhode- 
Island and Providence Plantations, Connecticut, New-York, 
New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, 
North-Carolina, South-Carolina, and Georgia, as they respec- 
tively stood at the time of its first institution; that it was insti- 
tuted for the purposes of securing and defending the com- 
munities aforesaid against the usurpations, oppressions, and 
hostile invasions of Great-Britain; and that therefore it can- 
not be intended that Congress by any of its proceedings, would 

* Charles G. Haines, "Conflict over Judicial Powers," p. 13 ; N. Y., 1909. 
t Lecky, "Democracy and Liberty," Vol. I, p. 364. 
% Vide. Quotations from Jefferson, Appendix 2. 



178 SECESSION AND CONSTITUTIONAL LIBERTY 

do or recommend or countenance anything injurious to the 
rights and jurisdictions of the several communities which it 
represents. 

"Resolved, That the independent government, attempted to 
be established by the people stiling themselves inhabitants of 
the New Hampshire Grants, can derive no countenance or 
justification from the act of Congress declaring the United 
Colonies to be independent of the crown of Great Britain, nor 
from any other act or resolution of Congress. 

"Resolved, That the petition of Jonas Fay ... in the 
name and behalf of the people stiling themselves as aforesaid, 
praying that 'their declaration that they would consider them- 
selves as a free and independent state may be received; that 
the district in the said petition described may be ranked among 
the free and independent states, and that delegates therefrom 
may be admitted to seats in Congress' be dismissed." * 

"Resolved . . . That in case the inhabitants" (of the New 
Hampshire grants) "... shall accede to the Articles of 
Confederation . . . between the States of New Hampshire" 
(the others named) "... their said delegates shall be ad- 
mitted to sign the same, and thereupon the inhabitants of the 
above described district shall be acknowledged a free, sov- 
ereign and independent state . . . " f 

Later, when the plea is granted, Vermont becomes "a sov- 
ereign, independent state"; 

"Resolved . . . That ... in the sense of your committee, 
the people of the said district . . . have fully complied with 
the stipulation, . . . required of them . . . as a preliminary 
to a recognition of their sovereignty and independence, and 
admission into' the federal union of the states . . . your com- 
mittee therefore submit the following resolution : 

"That the district or territory called Vermont . . .be and 

it is hereby recognized and acknowledged by the name of the 

state of Vermont, as free, sovereign and independent . . .," 

etc. Journals of Congress, April 16, 1782. 

♦Journals of Congress, June 30, 1777. 
t Ibid., March 1, 1782. 



APPENDIX 6 179 

"Resolved . . . Art. 1st, That the independence of the state 
of Vermont be held sacred," etc. X 

In the same way, when the State of Kentucky is formed, 
it is referred to as "a sovereign, independent state." 

"That, in their opinion, it is expedient that the district of 
Kentucky be erected into an independent State." § 

The Delaware Convention, assembled at New Castle, 
August 27, 1776. Each member took the following oath, 
vis.: 

"I, , will . . . support and maintain the independence 

of this state as declared by the honorable the Continental 
Congress; and I will . . . endeavor to form such a system 
of government for the people of this state as . . . may be 
best adapted to procure their happiness," etc. 

"Whereas the situation of the enemy's ships and forces . . . 
in the state of Delaware, have rendered the operation of the 
civil authority there utterly ineffectual, whereby it has become 
not only essential to the preservation of the independency of 
that state," etc. 

"Resolved, That the unappropriated lands that may be ceded 
... to the United States . . . shall be disposed of for the 
common benefit of the United States, and be settled and 
formed into distinct republican states, which shall become 
members of the federal union, and have the same rights of 
sovereignty, freedom and independence, as the other states," 
etc.* 

"Resolved, That Gen. Sullivan be requested to inform lord 

Howe, that this Congress, being the representatives of the free 

and independent states of America . . . That the president 

be desired to write to gen. Washington, and acquaint him, 

that it is the opinion of Congress, no proposals for making 

peace between Great Britain and the United States of America, 

ought to be received or attended to, unless the same be . . . 

addressed to the representatives of the said States in Congress 

$ Journals of Congress, April 4, 1782. 
§ Ibid., June 2, 1788. 
*Ibid., Oct. 10, 1780. 



180 SECESSION AND CONSTITUTIONAL LIBERTY 

. . . And if application be made to him by any of the com- 
manders of the British forces on that subject, that he inform 
them that these United States, . . . will cheerfully agree to 
peace on reasonable terms, whenever such shall be proposed to 
them in manner aforesaid." * 

"The committee appointed to confer with lord Howe . . . 
brought in a report in writing, which was read as follows: 
. . . 'that it was not till the late act of parliament, which 
denounced war against us, and put us out of the King's pro- 
tection, that we declared our independence; that this declara- 
tion had been called for by the people of the colonies in gen- 
eral; that every colony had approved of it, when made, and 
all now considered themselves as independent states, and were 
settling, or had settled, their governments accordingly; so, 
that it was not in the power of Congress to agree for them, 
that they should return to their former dependent state; that 
there was no doubt of their inclination to peace . . . that, 
though his lordship had, at present, no power to treat with 
them as independent states, he might, if there was the same 
good disposition in Britain, much sooner obtain fresh powers 
from thence, for that purpose than powers could be obtained 
by Congress, from the several colonies to consent to a sub- 
mission." f 

What can be more decisive than the foregoing? 

"I . . . do acknowledge the Thirteen United States of 
America, namely, New Hampshire, Massachusetts Bay . . . 
[etc.], to be free, independent, and sovereign states," etc.$ 

"Resolved, That all persons abiding within any of the 
United Colonies, and deriving protection from the laws of the 
same, owe allegiance to the said laws, and are members of such 
colony ; and that all persons passing through, visiting, or mak- 
ing a temporary stay in any of the said colonies, being entitled 
to the protection of the laws during the time of such passage, 

* Journals of Congress, September 5, 1776. 
t Journals of Congress, September 17, 1776. 

% Oath of officers in Continental service ; Journals of Congress, Octo- 
ber 21, 1776. 



APPENDIX 6 181 

visitation or temporary stay, owe, during the same, allegiance 
thereto. 

"That all persons, members of, or owing allegiance to any 
of the United Colonies, as before described, who shall levy 
war against any of the said colonies within the same, or be 
adherent to the king of Great-Britain, or other enemies of the 
said colonies, or any of them, within the same, giving to him 
or them aid or comfort, are guilty of treason against such 
colony : 

"That it be recommended to the legislatures of the several 
United Colonies, to pass laws for punishing, in such manner 
as to them shall seem fit, such persons before described, as 
shall be proveably attained of open deed, by people of their 
condition, of any of the treasons before described. 

"Resolved, That it be recommended to the several legisla- 
tures of the United Colonies, to pass laws for punishing, in 
such manner as they shall think fit, persons who shall counter- 
feit, or aid or abet in counterfeiting, the continental bills of 
credit, or who shall pass any such bill in payment, knowing 
the same to be counter feit." * 

"Resolved, That Congress approve the conduct of general 
Washington in refusing to enter into any discussion with 
general Carlton on the subject of the treason laws passed by 
the several states. 

"Resolved, That the states of America which compose the 
union, being sovereign and independent, the laws respectively 
passed by them . . . cannot be submitted to the discussion 
of a foreign power much less of an enemy." f 

The report of Madison, Hamilton, and Ellsworth, — ap- 
pointed a committee of Congress, April 18, 1783, to draft a 
plan asking the states to make certain provisions in relation to 
the public debt, — says : 

"By the blessing of the Author of these rights, on the 

means exerted for their defence, they have prevailed against 

♦Journals of Congress, June 24, 1776. 
t Ibid., August 12, 1782. 



182 SECESSION AND CONSTITUTIONAL LIBERTY 

all opposition and formed the basis of thirteen independent 
states." 

"Our enemies, as well foreign as domestic, have laboured 
to raise doubts on this head. They argue that the Confedera- 
tion of the states remains yet to be perfected ; that the union 
may be dissolved, Congress be abolished, and each state re- 
suming its delegated powers proceed in future to hold and 
exercise all the rights of sovereignty appertaining to an inde- 
pendent state. In such an event, say they, the continental 
bills of credit created and supported by the union, would die 
with it. This position being assumed, they next proceed to 
assert this event to be probable, and in proof of it urge our 
divisions, our parties, our separate interests, distinct manners, 
former prejudices, and many other arguments equally plaus- 
ible and equally fallacious. Examine this matter. 

"For every purpose essential to the defence of these states 
in the present war, and necessary to the attainment of the 
objects of it, these states are now as fully, legally and abso- 
lutely confederated as it is possible for them to be. Read the 
credentials of the different delegates who composed the Con- 
gress in 1774, 1775, and part of 1776. You will find that they 
establish an union for the express purpose of opposing the 
oppressions of Britain and obtaining redress of grievances. 
On the 4th of July, 1776, your representatives in Congress, 
perceiving that nothing less than unconditional submission 
would satisfy our enemies, did in the name of the people of 
the Thirteen United Colonies declare them to be free and in- 
dependent states, and 'for the support of that declaration, 
with a firm reliance on the protection of Divine Providence, 
did mutually pledge to each other their lives, their fortunes 
and their sacred honour. 3 Was ever confederation more for- 
mal, more solemn or explicit? It has been expressly assented 
to and ratified by every state in the union. Accordingly for 
the direct support of this declaration, that is for the support 
of .the independence of these states, armies have been raised, 
and bills of credit emitted and loans made to pay and supply 
them. The redemption, therefore, of these bills, the payment 
of these debts and the settlement of the accounts of the sev- 



APPENDIX 6 183 

eral states for expenditures or services for this common cause, 
are among the objects of this confederation; and consequently 
while all or any of its objects remain unattained, it cannot, so 
far as it may respect such objects, be dissolved,. consistent with 
the laws of God or man. 

"But we are persuaded, and our enemies will find, that our 
union is not to end here. They are mistaken when they sup- 
pose us kept together only by a sense of present danger. It is 
a fact which they only will dispute, that the people of these 
states were never so cordially united as at this day. By hav- 
ing been obliged to mix with each other, former prejudices 
have worn off, and their several manners become blended. . . . 

"You are not uninformed that a plan for a perpetual con- 
federation has been prepared and that twelve of the thirteen 
states have already acceded to it. But enough has been said 
to show that for every purpose of the present war, and all 
things incident to it, there does at present exist a perfect sol- 
emn confederation, and therefore that the states now are and 
always will be in political capacity to redeem their bills, pay 
their debts and settle their accounts." * 

This statement contains an indisputable assertion of the 
original independence of the thirteen colonies, severally, — and 
of their several power to withdraw from the union should 
each or any see fit, — when it recites without contradiction the 
supposed argument of the enemies of the union as to "each 
state resuming its delegated powers proceed . . . to . . . 
exercise all the rights of sovereignty pertaining to an inde- 
pendent state." Is it possible to suppose that with such an 
argument in their power against the statement they are op- 
posing as the fact that the States were not, and never had 
been, severally independent, it would have been omitted in 
this connection by Congress? Again, they state that "while 
all or any of its objects remain unattained" the Confederation 
"cannot so far as it may respect such objects be dissolved." 
These objects were the independence of the States, the redemp- 

* Circular letter from the Congress of the United States to their con- 
stituents; Journals of Congress, September 13, 1779. 



184 SECESSION AND CONSTITUTIONAL LIBERTY 

tion of the debts incurred by the war for their independence, 
etc. It necessarily follows by the argument that, these objects 
being satisfied, the States may severally resume "all the rights 
of sovereignty pertaining to an independent state." One of 
the objects being "the independence of the States," and the 
Union being dissolvable when all its objects are attained, it 
follows that the several independence of the States was the 
object aimed at. 

"Resolved, that it ... is recommended to the legislature 
of Virginia to take into consideration their act of cession, and 
revise the same so far as to empower the United States in 
Congress assembled, to make such a division of the territory 
of the United States lying northerly and westerly of the river 
Ohio, into distinct republican states . . . which states shall 
hereafter become members of the federal union, and have the 
same rights of sovereignty, freedom and independence as the 
original in conformity with the resolution of Congress . . ." * 

"Resolved . . . That this confederacy is most sacredly 
pledged to support the liberty and independence of every one 
of its members," etc. f 

"That the territory so ceded should be . . . formed into 
states . . . and admitted members of the federal union; 
having the same rights of sovereignty, freedom and inde- 
pendence as the other states.' ' % 

"Whereas the delegates of the United States of America in 
Congress assembled did, on the 15th day of November, in the 
year . . . 1777, and in the 2d year of the independence of 
America, agree to certain articles of confederation ... be- 
tween the states of New Hampshire . . . [others named], 
. . . And whereas it hath pleased the Great Governor of 
the world to incline the hearts of the legislatures, we re- 
spectively represent in Congress, to approve, and to authorize 
us to ratify the said articles of confederation . . . know 
ye that we the undersigned delegates, by virtue of the . . . 

* July 7, 1786. 

f Journals of Congress, June 23, 1780. 

% On the Cession of the North West Territory by Virginia ; Journals of 
Congress, September 13, 1783. 



APPENDIX 6 185 

authority, to us given for that purpose, do ... in the name 
and in behalf of our respective constituents . . . ratify . . . 
said articles of confederation. . . . " § 

Do these gentlemen mean nothing by their repeated limita- 
tion of their action by the word "respective"? Are they in- 
deed each representing not their "respective" state, but all the 
states? If they are not, by what act, at what time, did the 
states divest themselves of that oneness of action under which, 
as asserted by Mr. Wilson and his school, they acted in their 
previous Declaration ? 

In fact Congress can scarcely be said to have exercised any 
legitimate power. Its status is thus given by the editor of a 
"Plan of the new Constitution for the United States of 
America, agreed upon in a convention of the states [Note the 
term], with a preface by the editor. L., 1787:" 

"The original powers given to Congress were principally 
for the purpose of conducting the war; and though it essen- 
tially answered the purpose, experience has proved it is not 
adequate to all the circumstances of peace. 

"Very little defined power was necessary to be given to 
Congress during the war, because the spirit of the country 
being uniformly directed to one point, that of establishing its 
independence, required little more on the part of Congress 
than an arrangement of the measures by which the country 
was to act. The power, therefore, of Congress was chiefly 
discretionary ; ... it was not consistent with the principles 
of freedom in a time of peace, which required a legally defined 
power." 

"During the discussions of this solemn Act, [The Declara- 
tion of Independence] a committee consisting of a Member 
from each colony had been appointed to prepare & digest a 
form of Confederation for the future management of the com- 
mon interests which had hitherto been left to the discretion of 
Congress guided by the exigencies of the contest, and by the 

§ Journals of Congress, March 1, 1781. 



186 SECESSION AND CONSTITUTIONAL LIBERTY 

known intentions or occasional instructions of the Colonial 
Legislatures." * 

It is to be noted that the Confederation was not ratified until 
five years later than the date of Mr. Madison's description, 
conditions meantime remaining substantially the same. 

"In executing the task, it may be of use, to look back to the 
colonial state of this country, prior to the revolution ; to trace 
the effect of the revolution which converted the colonies into 
independent States; to enquire into the import of the articles 
of confederation, the first instrument by which the union of 
the States was regularly established ; and finally, to consult the 
constitution of 1788, which is the oracle that must decide the 
important question." f 

Judge Marshall's description is to the same effect : 

"The treaties and laws of the United States contemplate the 
Indian territory as completely separated from that of the 
States; and provide that all intercourse with them shall be 
carried on exclusively by the government of the union. 

"Is this the rightful exercise of power, or is it usurpation? 
While these states were colonies, this power, in its utmost ex- 
tent, was admitted to reside in the crown. When our revolu- 
tionary struggle commenced, congress was composed of an 
assemblage of deputies acting under specific powers granted 
by the legislatures or conventions of the several colonies. It 
was a great popular movement, not perfectly organized; nor 
were the respective powers of those who were entrusted with 
the management of affairs accurately defined. The necessities 
of our situation produced a general conviction that those meas- 
ures which concerned all must be transacted by a body in 
which the representatives of all were assembled, and which 
could command the confidence of all ; congress, therefore, was 
considered as invested with all the powers of war and peace, 
and congress dissolved our connexion with the mother coun- 
try, and declared these United Colonies to be independent 

* Madison, Preface to the Debates in the Convention of 1787. 
t Madison's Report on Virginia Resolutions. 



APPENDIX 6 187 

states. Without any written definition of powers, they em- 
ployed diplomatic agents to represent the United States at the 
several courts of Europe ; offered to negotiate treaties with 
France. From the same necessity, and on the same principles, 
congress assumed the management of Indian affairs; first in 
the name of these United Colonies; and afterwards, in the 
name of the United States. Early attempts were made at ne- 
gotiation, and to regulate trade with them. These not proving 
successful, war was carried on under the direction and with 
the forces of the United States, and the efforts to make peace, 
by treaty, were earnest and incessant. The confederation 
found congress in the exercise of the same powers of peace 
and war, in our relations with Indian nations, as with those of 
Europe. 

"Such was the state of things when the confederation was 
adopted/' * 

Neither had Congress power to enforce its recommenda- 
tions. Mr. Wilson, advocating ratification of the Constitution, 
asks : 

"Shall congress any longer continue to make requisitions 
from the several states, to be treated sometimes with silent 
and sometimes with declared contempt? . . . 

"Let me, Sir, mention one circumstance in the recollection 
of every honourable gentleman who hears me. To the de- 
termination of congress are submitted all disputes between 
states, concerning boundary ... In consequence of this 
power . . . this state (Pennsylvania) was successful 
enough to obtain a decree in her favour, in a difference then 
subsisting between her and Connecticut; but what was the 
consequence? the congress had no power to carry the decree 
into execution." 

"This clearly shows that our perilous situation was the 
cement of our union. How different the scene when this peril 
vanished, and peace was restored ! The demands of Congress 
were treated with neglect. . . . Did not our compliance with 
any demand of Congress depend on our own free will? If we 

* Worcester v. Georgia. 



188 SECESSION AND CONSTITUTIONAL LIBERTY 

refused, I know of no coercive force to compel a compli- 
ance." * 

So the French Charge d } Affaires writes to Comte de Mont- 
morin, April 10, 1787: 

"Le Congres n'est reellement qu'un phantome de souvera- 
inete destitue de pouvoir, d' energie et de consideration. " 

And again : 

". . . les Etats n'ont reellement aucun interet pressant 
d'etre sous un seul chef. Leur politique qui se borne a leurs 
speculations commerciales, leur inspire meme reciproquement 
de Inversion et de la jalousie, passions qui se trouverent ab- 
sorbees pendant la guerre par l'enthousiasme de la liberte et 
de l'independance, mais qui com[m]encent a reprendre toute 
leur force. Ces republicans n'ont plus de Philippe a leur 
portes." f 

"Those intelligent minds, in which patriotism was com- 
bined with practical good sense, were by no means unapprised 
of the dangers to be apprehended from a system (the Con- 
federacy) in which the national character was not even sought 
to be preserved ; and by which the American confederacy be- 
came substantially an alliance of independent nations, whose 
several ambassadors assembled in a general congress for the 
purpose of recommending to their respective sovereigns that 
general plan of operations, which had been there concerted, 
and which each was at perfect liberty to pursue or to neg- 
lect." t 

"To the Senate and House of Representatives of the United 
States in Congress assembled: The remonstrance of the Leg- 
islature of the State of New Hampshire, showeth: — That the 
citizens of the State of New Hampshire adopted the federal 
constitution of the United States under the full conviction 
that more extensive general powers were necessary to be 
vested in Congress than they ever possessed, when they were 

* Randolph, in Virginia Ratifying Convention, 
t M. Otto, French Charge d' Affaires. 

% Marshall, "Life of Washington," Vol. IV, p. 263. The same expres- 
sion was repeatedly used; v. Appendix 13. 



APPENDIX 6 189 

entirely dependent on the good will or the resolves of the 
several states. But by this adoption they did not then intend, 
nor does their Legislature now choose to admit, that the Con- 
federation was in force prior to March 1781 . . . In fact 
the Legislature conceive, and feel no inclination to relinquish 
the idea, that Congress, in its origin, was merely an advisory 
body, chosen by the several States to consult upon measures 
for the general good of the whole; that the adoption of meas- 
ures recommended by them was entirely in the breast of the 
several States or their Legislatures; that no measures could 
be carried into effect in any State without its agreement 
thereto . . . that the declaration of Independence received 
effect from its being acceded to by the Legislatures of the 
several states." * 

"... They again remonstrate to Congress against a vio- 
lation of State independence and an unwarranted encroach- 
ment in the courts of the United States . . . That this State 
had a right to oppose the British usurpation in the way it 
thought best; could make laws as it chose, with respect to 
every transaction where it had not explicitly granted the power 
to Congress; that the formation of courts for carrying those 
laws into execution belonged only to the several States; that 
Congress might advise and recommend, but the States only 
could enact and carry into execution; and that attempts re- 
peatedly made to render the laws of this State in this respect 
null and void is a flagrant insult to the principle of the revo- 
lution ... 

"Can the remembrance of the manner of our opposition to 
tyranny, and the gradual adoption of federal ideas be so pain- 
ful as to exclude . . . the knowledge that Congress, in its 
origin, was merely an advisory body : that it entirely depended 
upon the will of the several Legislatures to enforce any meas- 
ure they might recommend; that the inconveniences of this 
principle produced the confederation; and, even at that late 
day, it was declared that powers not expressly delegated to 
Congress are reserved to the States, or the people respectively ; 
that the experience of years, of the inefrlcacy of thirteen Legis- 

* February 20, 1792. 



190 SECESSION AND CONSTITUTIONAL LIBERTY 

latures to provide for the wants and to procure the happiness 
of the American people, caused the adoption of the present 
constitution — an adoption totally unnecessary, in point of 
principle, if the claims of former Congressional power are 
established. " * 

Its own proceedings show its lack of power and entire de- 
pendence on the several States ; e. g. : 

"Resolved, That the proposed plan for a military establish- 
ment be postponed, and that a letter be addressed to the several 
states, and that they be requested to take into their most seri- 
ous consideration and give their opinions on the .following 
questions/ ' etc.f 

"A man by the name of De Longchamps entered the house 
of the French minister plenipotentiary in Philadelphia, and 
there threatened violence to the person of Francis Barbe Mar- 
bois, secretary of the French legation, Consul General of 
France, and Consul for the state of Pennsylvania; he after- 
wards assaulted and beat him in the public street. For this of- 
fence he was indicted and tried in the Court of Oyer and 
Terminer of Philadelphia and punished under its sentence. A 
question was made whether the authorities of Pennsylvania 
should not deliver up De Longchamps to the French govern- 
ment to be dealt with at their pleasure. It does not appear that 
the federal government was considered to possess any power 
over the subject, or that it was deemed proper to invoke its 
counsel or authority in any form. This case occurred in 1784, 
after the adoption of the articles of confederation; but if the 
powers of the federal government were less under those ar- 
ticles than before, it only proves that however great its 
previous powers may have been they were held at the will of 
the States, and were actually recalled by the articles of con- 
federation." % 

* Remonstrance of New Hampshire, January 16, 1795. 

t Journals of Congress, April 16, 1778. 

% Upshur, "Review of Story's Commentaries." 



APPENDIX 6 191 

December 29, 1780, it was 

"Resolved, That a committee of three be appointed to collect 
and cause to be published, 200 correct copies of the declara- 
tion of independence, the articles of confederation . . . the 
alliance between these United States and his most Christian 
Majesty, with the constitution or form of government of the 
several states . . ." * 

This committee was composed of Mr. Bee (of South Caro- 
lina), Mr. Witherspoon (of New Jersey), Mr. Wolcott (of 
Connecticut). The work, published in 1781, went through 
various editions. Its title is "The Constitutions of the Several 
Independent States of America . . . The Articles of Con- 
federation between the said States ; The Treaties between His 
Most Christian Majesty and the United States of America," 
etc. 

The use of the phrases "The Constitutions of the Several 
Independent States of America, the Articles of Confederation 
between the said States," and "The Treaties between His Most 
Christian Majesty and the United States," is most significant. 
Other editions of the Constitutions use the same distinctive 
phraseology. 

The editors of this compilation, edition of 1782, say in 
their preface : 

"After the Colonies of North America had completely re- 
nounced their allegiance to the Mother-Country, by their sol- 
emn Declaration of Independence . . . each of the States 
into which they were then divided, adopted different forms of 
independent governments," etc. 

It is to be observed that this is not said polemically, but as 
explaining the cause of there having been no prior collection 
of the State constitutions published. 

In 1786 was "published by order of Congress," in New 

York, "The Constitutions of the Several Independent States 

of America; the Declaration of Independence; the Articles of 

Confederation between the said States," etc. 

* Journals of Congress. 
1—13 



192 SECESSION AND CONSTITUTIONAL LIBERTY 

May 15, 1776. The Virginia Convention resolved unani- 
mously to instruct their delegates in the Continental Congress 
to propose 

"to that respectable body to declare the Colonies free and 
independent States, . . . pledging their support ... to 
whatever measures may be thought proper and necessary by 
the Congress for forming foreign alliances, and a confedera- 
tion of the Colonies, at such time, and in the manner as to 
them shall seem best; Provided, that the power of forming 
government for, and the regulation of the internal concerns 
of each colony be left to the respective colonial legislatures. ,, 

So the other States, through their delegates in Congress, as 
shown by their credentials, pledged themselves alone, e. g., 
North Carolina: 

"In Congress, December 20, 1776. Resolved, That Wil- 
liam Hooper ... be, and they are hereby, appointed dele- 
gates to attend the Congress of the United States of America, 
in behalf of this state . . . and they are invested with such 
powers as may make any act done by them, or any of them, or 
consent given in the said Congress, in behalf of this state, 
obligatory upon every inhabitant thereof." * 

"You are hereby invested with such powers as may make 
any act done by you ... or consent given in the said Con- 
gress, in behalf of this state, obligatory on every inhabitant 
thereof," etc.f 

"In Convention of the Representatives of the State of New 
York . . . July 9, 1776. 

"Resolved unanimously, That the delegates of this state, in 
the Continental Congress, be, and they hereby are authorized 
to concert and adopt all such measures as they may deem con- 
ducive to the happiness and welfare of the United States of 
America." % 
Massachusetts : 

"Resolved, That the above named gentlemen be . . . em- 
powered with other delegates from the American states . . . 

* Credentials of Delegates of North Carolina, 
t Ibid., Journals of Congress, June 2, 1777. 
t Journals of Congress, July 15, 1776. 



APPENDIX 6 193 

to concert . . . such . . . measures as to them shall ap- 
pear best calculated for the establishment of right, liberty and 
independence to the American states . . . and guarding 
against all encroachments ... of the enemies of the United 
States." * 

The New Hampshire Constitution of 1776 recited that 

"The people inhabiting the territory formerly called the 
Province of New Hampshire, do hereby solemnly and mutu- 
ally agree with each other, to form themselves into a free, 
sovereign, and independent Body-politic or State, in the name 
of the State of New Hampshire." 

The preamble of the 1776 Constitution of Connecticut be- 
gins : 

"The People of this State, being by the Providence of God, 
free and independent, have the sole and exclusive right of 
governing themselves as a free, sovereign, and independent 
state." 

The Constitution of Massachusetts of 1779, framed by 
John Adams, declares that 

"The people inhabiting the territory formerly called the 
Province of Massachusetts-Bay, do hereby solemnly and mu- 
tually agree with each other, to form themselves into a free, 
sovereign, and independent body-politic or state, by the name 
of The Commonwealth of Massachusetts. . . . 

"The people of this commonwealth have the sole and ex- 
clusive right of governing themselves as a free, sovereign, and 
independent state; and do, and forever hereafter shall, exer- 
cise and enjoy every power, jurisdiction, and right, which are 
not, or may not hereafter be by them expressly delegated to 
the United States in Congress assembled." 

The Constitution of New York, of 1777, is particularly il- 
luminative, for it incorporates the Declaration of Independ- 
ence, etc., after reciting which, it continues: 

""Credentials of the Delegates of Massachusetts, Dec. 12, 1777; Jour- 
nals of Congress, January 7, 1778. 



194 SECESSION AND CONSTITUTIONAL LIBERTY 

"By virtue of which several acts, declarations, and pro- 
ceedings mentioned and contained in the aforesaid resolves or 
resolutions of the general Congress of the United American 
States, and of the congresses or conventions of this State, all 
power whatever therein hath reverted to the people thereof, 
and this convention hath by their suffrages and free choice 
been appointed, and among other things authorized to insti- 
tute and establish such a government as they shall deem best 
calculated to secure the rights and liberties of the good people 
of this state. . . . 

"That no authority shall on any pretence whatever, be exer- 
cised over the people or members of this State, but such as 
shall be derived from, or granted by them." 

Thus, it is here expressly stated that the sovereignty for- 
merly existent in Great Britain reverts by the Declaration of 
Independence to, — no abstraction of a general people of the 
United States — but to the people of New York State. 

"The Congress (of New Jersey) empower and direct you, 
in the name of this colony, to join with the delegates of the 
other colonies, in continental Congress . . . and, if you 
shall judge it necessary or expedient for this purpose, we em- 
power you to join with them in declaring the United Colonies 
independent of Great Britain, entering into a confederation 
for union and common defence . . . always observing, that 
whatever plan of confederacy you enter into, the regulating 
the internal police of this province is to be reserved to the 
colony legislature.' ' * 

"The people of the State of New York, one of the United 
States of America, by the grace of God free and independent, 
to their brethren of the other of the said United States in 
Congress assembled, and to all others who shall see these our 
letters patent, send greeting. . . . 

"Whereas the freedom, sovereignty and independence . . . 
wiil, for a lasting and unshaken security, in a great measure 
depend . . . Witness our trusty and well-beloved George 

* Credentials of New Jersey Delegates ; Journals of Congress, June 21, 
1776. 



APPENDIX 6 195 

Clinton Esq., our governor of our said state, general and 
commander in chief of all the militia, and admiral of our navy 
of the same, the 16th day of February, in the second year of 
our independence and sovereignty." * 

Unless the "ours" refer to different substantives, then this 
ratification claims that at that time New York State was inde- 
pendent and sovereign. The same applies to the following 
citation. 

"John Jay, a delegate for the state of New York, attended, 
and produced the credentials of his appointment, which were 
read as follows : The people of the state of New York, by the 
grace of God free and independent, to all . . . Witness our 
trusty and well-beloved George Clinton Esq. our governor 
. . . this tenth day of November, in the third year of our 
independence . . ." f 

"State of New York, in Senate and Assembly, the 15th and 
19th days of Nov. in the 6th year of the independence of the 
said State, 1781 : . . . 

"Resolved, That . . . the legislature of this state is 
greatly alarmed at the evident intention of Congress . . . 
to dismemberment, possessed by the revolted subjects of the 
state, into an independent state, and as such to admit them into 
the federal union of these United States," etc. % 

"In the eleventh year of the independence of the Delaware 
state. An act appointing Deputies from this State to the Con- 
vention proposed to be held in the City of Philadelphia, for the 
purpose of revising the Federal Constitution ... So al- 
ways and provided, that such alterations ... do not extend 
to that part of the 5th article of the confederation of the said 
states, . . . which declares that Tn determining questions 
in the United States in Congress assembled, each state shall 
have one vote." § 

"The delegates from N. Carolina produced a new commis- 
sion, which was read, as follows : 

* Ratification of Articles of Confederation by New York, 
t Journals of Congress, December 7, 1778. 
tlbid., October 19, 1782. 

§ Credentials of the Deputies of Delaware to the Federal Convention, 
Feb. 3, 1787; Elliot, Vol. I. 



196 SECESSION AND CONSTITUTIONAL LIBERTY 

"... hereby giving and granting unto any two of the 
said delegates present in Congress, full power ... to bind 
the inhabitants of this state in all cases, not inconsistent with 
. . . its rights as an independent sovereign people . . ." * 

"The assembly of Rhode Island, having appointed two dele- 
gates to represent that colony in Congress, the credentials of 
their appointment were laid before Congress, and read, as 
follows : . . . You are also authorized ... to enter into 
and adopt all such measures, taking the greatest care to secure 
to this colony, in the strongest and most perfect manner, its 
present established form and all the powers of government, 
so far as relates to its internal police and conduct of our own 
affairs, civil and religious," etc.f 

"A resolution of the convention of Maryland, passed the 
28th of June was laid before Congress and read, as follows : 
'That the instructions given to their deputies in December 
last, be recalled, and the restrictions therein contained, re- 
moved ; and that the deputies of said colony ... be author- 
ized ... to concur with the other United Colonies . . . 
in declaring the United Colonies free and independent states ; 
in forming such further compact and confederation between 
them ... as shall be judged necessary for securing the 
liberties of America; and that said colony will hold itself 
bound, by the resolutions of the majority of the United Col- 
onies, in the premises; provided, the sole and exclusive right 
of regulating the internal government and police of that colony 
be reserved to the people thereof." J 

"Although the pressure of immediate calamities . . . may 
have induced some states to accede to the present confedera- 
tion, contrary to their own interests ... it requires no 
great share of foresight to predict that when those causes 
cease to operate, the states which have thus acceded to the 
confederation will consider it as no longer binding, and will 
eagerly embrace the first occasion of asserting their just rights 
and securing their independence . . . We are convinced 

* Journals of Congress, Sept. 1, 1778. 
t Journals of Congress, May 14, 1776. 
tlbid., July 1, 1776. 



APPENDIX 6 197 

policy and justice require that a country unsettled at the com- 
mencement of this war, claimed by the British crown ... if 
wrested from the common enemy by the blood and treasure of 
the thirteen states, should be considered as a common prop- 
erty, subject to be parcelled out by Congress into free . . . 
and independent governments . . . Thus convinced we 
should betray the trust reposed in us by our constituents, 
were we to authorize you to ratify in their behalf the con- 
federation/ ' etc.* 

"The Parliament of Great Britain . . . having endeav- 
oured ... to subjugate the United Colonies . . . and 
having at length constrained them to declare themselves inde- 
pendent States, and to assume government under the authority 
of the people: — Therefore, we, the Delegates of Maryland, 
. . . declare/' etc. f 

"Francis Hopkinson, Esq., one of the delegates of New 
Jersey, attended, and produced the credentials of their ap- 
pointment, which was read as follows, viz.: 

" *. . . The Congress empower and direct you, in the name 
of this colony, to join with the delegates of the other colonies, 
in continental Congress, in the most vigorous measures for 
supporting the just rights and liberties of America; and, if you 
shall judge it necessary or expedient for this purpose, we 
empower you to join with them in declaring the United Col- 
onies independent of Great-Britain, entering into a confedera- 
tion for union and common defence, making treaties with 
foreign nations for commerce and assistance, and to take such 
other measures, as may appear to them and you necessary for 
these great ends; promising to support them with the whole 
force of this province; always observing, that whatever plan 
of confederacy you enter into, the regulating the internal po- 
lice of this province is to be reserved to the colony legisla- 
ture/ " t 

"The permitting any power other than the general assembly 
of the Commonwealth to levy duties or taxes upon the citizens 

* Instructions laid before Congress by the Delegates of Maryland ; 
Journals of Congress, May 21, 1779. 

t Declaration of Rights of Maryland ; Constitution of 1776, 
t Journals of Congress, June 28, 1776. 



198 SECESSION AND CONSTITUTIONAL LIBERTY 

of this State, within the same, is injurious to its sover- 
eignty." * 

"The delays and uncertainties incident to a revenue to be 
established and collected from time to time by thirteen inde- 
pendent authorities is at first view irreconcilable with the prac- 
tical and essential," etc.f 

"A government which relies on thirteen independent sov- 
ereignties for the means of its existence, is a solecism in theory 
and a mere nullity in practice. . . . Can Congress, after the 
repeated unequivocal proofs it has experienced of the utter 
inutility and inefficacy of requisitions, reasonably expect that 
they would be hereafter effectual or productive." J 

Later on, pretty nearly every State at one time or another 
specifically asserted its sovereignty : e. g. : 

"It never could have been contemplated by the framers of 
our excellent Constitution, who, it appears, in the most 
cautious manner, guarded the sovereignty of the States, or by 
the States who adopted it," etc.§ 

The following extracts serve to show that the popular idea 
coincided with the official statements: 

A broadside "Epitaph" on George III., Philadelphia, 1782 
(preserved in the Library Company of Philadelphia, Ridgway 
Br. ) , runs as follows : 

"Indignant Reader 

•' • • 

Thus was begun 

• • • 

The most wonderful Revolution 



** Virginia, Act of December 7, 1782, refusing to allow Congress to levy 
an impost duty. 

f "Address to the States," April 26, 1783. 

t Madison, in Virginia Ratifying Convention, 

§ Governor of Vermont's Speech, October 23, 1813. 



APPENDIX 6 199 

And out of the ruins of a Cast-off Sunken Reprobate 

Monarchy 

Ascended Upwards 

Thirteen Glorious Republics." 

Thomas Pownall, Governor of Massachusetts Bay, etc., etc., 
published in 1783, a "Memorial addressed to the sovereigns of 
America. ,, Whom he understood by that term is shown, inter 
alia, when he says : 

"Therefore United States ... I address you not only as 
Sovereign States, established and acknowledged," etc., etc. 

David Ramsay, President of Congress (i785-'86), pub- 
lished in 1785 "The History of the Revolution of South Caro- 
lina, from a British Province to an Independent State." 

In his "Address to the Freemen of South Carolina," 1787, 
he also says as follows : 

"When thirteen persons constitute a family, each should 
forego everything that is injurious to the other twelve. When 
several families constitute a parish, or county, each may adopt 
any regulation it pleases with regard to its domestic affairs, 
but must be abridged of that liberty in other cases, where the 
good of the whole is concerned . . . 

"When thirteen states combine in one government, the same 
principle must be observed . . ." 

In the same "Address" he says : 

"Connecticut and Rhode Island were nearly as free before 
the revolution as since. They had no royal governor or coun- 
cils to control them or to legislate for them. Massachusetts 
and New Hampshire were much nearer independence in their 
late constitutions than we were . . . You were among the 
first states that formed an independent constitution, be not 
among the last in accepting and ratifying the proposed plan of 
federal government; . . . without it independence may 
prove a curse." 

"Can we believe that a government of a federal nature, 
consisting of many coequal sovereignties?" etc.* 

* Madison, in Virginia Ratifying Convention ; Elliot, Vol. Ill, p. 381. 



200 SECESSION AND CONSTITUTIONAL LIBERTY 

To the same effect, of the several independency of the 
States is, Noah Webster's "Examination into the Leading 
Principles of the Federal Constitution," Philadelphia, 1787. 

"The only question ... is, whether the new constitution 
delegates to Congress any powers which do not respect the 
general interests of the United States. If these powers intrude 
upon the present sovereignty of any State," etc. 

The catalogue of Harvard College, published in Boston, 
1782, is dated "Annoque Rerum Publicarum America Fcedera- 
tarum summce potestatis septimo." "In the 7th year of the 
sovereignty of the Confederated Republics of America." 

Cooper, the novelist and historian, practically a contempo- 
rary, gave his story of the Revolution, "Lionel Lincoln" 
(1825?), the half-title, "Legends of the Thirteen Republics." 

Again, in "The Pilot" (Chapter XXIX) is the same phrase : 

" 'Down with your arms, you Englishmen !' said the daring 
intruder; 'and you, who fight in the cause of sacred liberty, 
stay your hands, that no unnecessary blood may flow. Yield 
yourself, proud Briton, to the power of the Thirteen Repub- 
lics !'" 

"The declaration of Independence, though it annulled the 
power of Britain over the colonies, established no superintend- 
ing government in its room; and each colony became a free 
and independent state." * 

"To the Senate and House of Representatives of the 
Commonwealth of Pennsylvania. 

"The petition of the subscribers, citizens of the said Com- 
monwealth, . . . That your petitioners are fully aware of 
the many wise and salutary provisions contained in the consti- 
tution of this commonwealth ... it would have been un- 
reasonable to have expected the constitution without fault 
. . . The convention could be guided only by general prin- 
ciples, and formed their plan on a model not exactly suited to 

* Analysis of the Report of the Committee of the Virginia Assembly 
on the Proceeding of some of the other States in answer to their Resolu- 
tions, by Alexander Addison; Philadelphia, 1800. 



APPENDIX 6 201 

the condition of the people : They were establishing a republic 
on the ruins of a decayed monarchy . . ." * 

Chief Justice Marshall, an actor in these scenes, whose 
strongly nationalistic tendency and most important influence 
towards consolidating the government by his judicial decisions 
render any adverse testimony by him doubly valuable, con- 
stantly refers, throughout his "Life of Washington," to the 
original sovereignty and independence of the several States 
after the Declaration. A few examples will suffice. 

"The extraordinary spectacle had been exhibited of thirteen 
distinct colonies, possessing at first no legitimate government 
and afterwards, when they became states, possessing govern- 
ments entirely independent of each other, carrying on con- 
jointly, by themselves, and by their deputies a burdensome 
war," etc.f 

"The attention of Congress was very early called to this 
interesting subject by General Washington; but that body 
performed its most important duties through the agency of 
sovereign states." J 

"The state sovereignties, where the real energies of govern- 
ment reside," etc., etc.§ 

"Although the best dispositions existed, the proceedings of 
Congress were unavoidably slow, and the difficulty of bringing 
about a harmony and concert of measures among thirteen 
sovereign states was too great to be surmounted." || 

"But so difficult is it to effect any objects, however impor- 
tant, which are dependent on the concurrent assent of so many 
distinct sovereignties." ff 

"His [Washington's] circular letter written on this occasion 
to the state sovereignties." ** 

* Petition for an Amendment of the Constitution of Pennsylvania to 
Reduce the Power Vested in the Governor of the State. Read in the 
House, March I, 1822. (In Ridgway Branch of Library Company of 
Philadelphia.) 

t Marshall's Life of Washington, Vol. Ill, p. 37. 

$Vol. Ill, p. 62. 

§ Vol. Ill, p. 78. 

|| Vol. IV, p. 177. 

IF Vol. IV, p. 472. 

**Vol. IV, p. 623. 



202 SECESSION AND CONSTITUTIONAL LIBERTY 

"From requisitions alone to be made on sovereign states, 
were the supplies to be drawn." * 

"That the debt of the United States should have greatly 
depreciated will excite no surprise, when it is recollected that 
the government of the union possessed no funds, and without 
the assent of z[j?]ealous and independent sovereigns could 
acquire none." f 

"That thirteen independent sovereignties, jealous of each 
other, could be induced to concur . . . few were so sanguine 
as to hope." 

"A government authorized to declare war, but relying on 
independent states for the means of prosecuting it; capable of 
contracting debts, and of pledging the public faith for their 
payment, but depending on thirteen distinct sovereignties for 
the preservation of that faith; could only be rescued from 
ignominy and contempt by finding these sovereignties admin- 
istered by men exempt from the passions incident to human 
nature." J 

The same fact was always recognized by Mr. Marshall in 
those decisions by which, when Chief Justice, he sought to 
strengthen the Federal Government at the expense of the State 
Governments. 

"Whatever respect might have been felt for the state sov- 
ereignties, it is not to be disguised that the framers of the con- 
stitution viewed with some apprehension the violent acts which 
might grow out of the feelings of the moment." § 

"That a war broke out between Great Britain and her col- 
onies, which terminated in a treaty of peace acknowledging 
them as sovereign and independent states." || 

"In considering this question, it must be recollected, that, 

previous to the formation of the new constitution, we were 

divided into independent states, united for some purposes, but 

in most respects sovereign. These states could exercise almost 

* Marshall's Washington, Vol. IV, p. 641. 
t Ibid., Vol. V, p. 88. 
t Ibid., Vol. V, p. 31. 

§ Marshall, in Fletcher vs. Peck ; "Marshall's Writings," p. 136 ; B., 
1839. 

Ibid., p. 139. 



APPENDIX 6 203 

every power, and among others that of passing bankrupt laws. 
When the American people created a national legislature, with 
certain enumerated powers, it was neither necessary nor proper 
to define the powers retained by the states. These powers 
proceed not from the people of America, but from the people 
of the several states; and remain, after the adoption of the 
constitution, what they were before, except so far as they may 
be abridged by that instrument." * 

"The constitution does not grant to the states the power of 
passing bankrupt laws, or any other power ; but finds them in 
possession of it, and may either prohibit its future exercise 
entirely, or restrain it so far as national policy may require." f 

"In the case now to be determined, the defendant, a sov- 
ereign state, denies the obligation of a law enacted by the 
legislature of the union, and the plaintiff, on his part, contests 
the validity of an act which has been passed by the legislature 
of that state." % 

"Much more might the legitimacy of the general govern- 
ment be doubted, had it been created by the states. The pow- 
ers delegated to the state sovereignties were to be exercised 
by themselves, not by a distinct and independent sovereignty, 
created by themselves. To the formation of a league, such as 
was the confederation, the state sovereignties were certainly 
competent. But when, 'in order to form a more perfect union/ 
it was deemed necessary to change this alliance into an ef- 
fective government, possessing great and sovereign powers, 
and acting directly on the people, the necessity of referring it 
to the people, and of deriving its powers directly from them, 
was felt and acknowledged by all/* § 

"The creation of a corporation, it is said, appertains to 
sovereignty. This is admitted. But to what portion of sov- 
ereignty does it appertain ? Does it belong to one more than to 
another? In America the powers of sovereignty are divided 
between the government of the union and those of the states. 
They are each sovereign with respect to the objects committed 

* Sturges v. Crowninshield, "Marshall's Writings," B., 1839, p. 148. 

t Sturges v. Crowninshield, ibid., p. 153. 

t M'Culloch v. State of Maryland et al, ibid., p. 160. 

§ Ibid., p. 163. 



204 SECESSION AND CONSTITUTIONAL LIBERTY 

to it, and neither sovereign with respect to the objects com- 
mitted to the other." * 

"The counsel for the defendant in error have undertaken 
to do this; and have laid down the general proposition, that a 
sovereign, independent state is not suable, except by its own 
consent. 

"This general proposition will not be controverted. But 
its consent is not requisite in each particular case. It may be 
given in a general law. And if a state has surrendered any 
portion of its sovereignty, the question, whether a liability to 
suit be a part of this portion, depends on the instrument by 
which the surrender is made. If, upon a just construction of 
that instrument, it shall appear that the state has submitted to 
be sued, then it has parted with this sovereign right of judging 
in every case on the justice of its own pretensions, and has 
entrusted that power to a tribunal in whose impartiality it 
confides/ ' f 

"As preliminary to the very able discussions of the consti- 
tution which we have heard from the bar, and as having some 
influence on its construction, reference has been made to the 
political situation of these states anterior to its formation. It 
has been said, that they were sovereign, were completely inde- 
pendent, and were connected with each other only by a league. 
This is true." % 

"The constitution of the United States was ordained and 
established, not by the states in their sovereign capacities, but, 
emphatically, as the preamble of the constitution declares, by 
"the people of the United States," There can be no doubt that 
it was competent to the people to invest the general govern- 
ment with all the powers which they might deem proper and 
necessary, to extend or restrain these powers according to their 
own good pleasure and to give them a paramount and supreme 
authority. As little doubt can there be that the people had a 
right to prohibit to the states the exercise of any powers which 

* "Marshall's Writings," B., 1839, p. 167. 

t Cohen vs. State of Virginia, "Marshall's Writings," B., 1839, p. 225. 

t Gibbons vs. Ogden, ibid., p. 288. 



APPENDIX 6 205 

were, in their judgment, incompatible with the objects of the 
general compact ; to make the powers of the state governments, 
in given cases, subordinate to those of the nation, or to reserve 
to themselves those sovereign authorities which they might 
not choose to delegate to either. The constitution was not, 
therefore, necessarily carved out of existing state sovereign- 
ties, nor a surrender of powers already existing in state insti- 
tutions; for the powers of the states depend upon their own 
constitutions, and the people of every state had the right to 
modify and restrain them according to their own views of 
policy or principle. On the other hand, it is perfectly clear, 
that the sovereign powers vested in the state governments by 
their respective constitutions remained unaltered and unim- 
paired, except so far as they were granted to the government 
of the United States." * 

"The suit, then, might be as well sustained in a court of 
equity as in a court of law, and the objection, that the interests 
of the state are committed to subordinate agents, if true, is the 
unavoidable consequence of exemption from being sued, — of 
sovereignty." f 

"The state of Georgia, by giving to the bank the capacity 
to sue and be sued, voluntarily strips itself of its sovereign 
character, so far as respects the transactions of the bank, and 
waives all the privileges of that character." X 

"It occurred to me that in a country where 'all men are 
equal,' the government would be guilty of no great crime, did 
it so far interfere as to give them all an opportunity of be- 
coming Christians if they wished it. But should the federal 
government dare to propose building a church and endowing 
it, in some village that has never heard 'the bringing home of 
bell and burial,' it is perfectly certain that not only the sov- 
ereign state where such an abomination was proposed would 
rush into the Congress to resent the odious interference, but 
that all the other states would join the clamour, and such an 

* "Marshall's Writings," B., 1839, Martin vs. Hunter's Lessee. 
t Osborn et al. vs. United States Bank. 
% U. S. Bank vs. Planters' Bank. 



2o6 SECESSION AND CONSTITUTIONAL LIBERTY 

intermeddling administration would run great risk of impeach- 
ment and degradation." * 

"If I mistake not, every debate I listened to in the American 
Congress was upon one and the same subject, namely the en- 
tire independence of each individual state with regard to the 
federal government. The jealousy on this point appeared to 
me to be the very strangest political feeling that ever got pos- 
session of the mind of man. I do not pretend to judge the 
merits of this question. I speak solely of the very singular 
effect of seeing man after man start eagerly to his feet, to 
declare that the greatest injury, the basest injustice, the most 
obnoxious tyranny that could be practised against the state of 
which he was a member, would be a vote of a few million dol- 
lars for the purpose of making their roads or canals, or in 
short for any purpose of improvement whatsoever." f 

"I was denounced by men who, in the same breath, reviled 
me as an extravagant latitudinarian of constructive powers, 
because I believed that Congress might, without absolute an- 
nihilation to the liberties of the country, build an observatory, 
dig a canal, open a road, and institute an university for the 
education of youth." 6A % 

"The only question ... is, whether the new Constitution 
delegates to Congress any powers, which do not respect the gen- 
eral interest ... of the United States. If these powers en- 
trench upon the present sovereignty of any state, without," etc. § 

"The Federalist" is pervaded with the acknowledgment of 
State Sovereignty, although not infrequently its acknowledg- 
ment is bracketed with inconsistent statements. 

"H. No. 9. The proposed constitution, so far from imply- 
ing an abolition of the state governments, makes them con- 
stituent parts of the national sovereignty, by allowing them a 
direct representation in the senate, and leaves in their posses- 
sion certain exclusive and very important portions of sov- 

* Mrs. Trollope, "Domestic Manners of the Americans," p. 101 ; N. Y., 
1832. Travels were in 1827 et seq. 

f Ibid., p. 184. 

t John Quincy Adams ; Henry Adams, "New England Federalism," p. 
160; Boston, 1877. 

§ Noah Webster, "Examination into the Leading Principles of the 
Federal Constitution"; Phila., 1787. 



APPENDIX 6 207 

ereign power.' The ambiguity of this sentence arises from the 
interpolation of the words national sovereignty, which are not 
in the constitution ; from admitting that the powers not dele- 
gated were sovereign powers belonging to the governments of 
the states; and from making these governments constituent 
parts of a national sovereignty, in virtue of their representa- 
tion in the senate; by which representation they became the 
subjects of the assumed national sovereignty. State sover- 
eignty is lodged in the people of each state, but by supposing 
it to be lodged in their governments, and considering these 
governments as constituents of a national sovereignty in con- 
sequence of their representation in the senate, state rights are 
made to derive their security, not from the limitations and 
reservations of the federal compact, but from this representa- 
tion of their governments, just as Englishmen derive theirs 
from their representation in parliament. Whatever may be 
the rights of Englishmen, representation invests the parlia- 
ment with a supreme power over them ; and whatever may be 
the rights of the political individuals called state governments, 
representation creates a national sovereignty over these also, 
according to this ingenious sentence. 

"By taking it for granted that the constitution has estab- 
lished a national sovereignty, the difficulty of proving it is 
avoided. The phrase 'national sovereignty,' is assumed in 
correspondence with that of the British parliament; and the 
state governments are turned into its constituents by the struc- 
ture of the senate. Mr. Hamilton thus concedes to himself the 
essential principle of his plan for a government; knowing that 
if the concession should succeed, its consequences would cer- 
tainly follow. A national sovereignty would remove most 
obstacles to his system, and to use his own sound language, 'if 
it was once formed, it would maintain itself.' 

"The most ingenious and conciliating ground upon which a 
national sovereignty is erected, is this of representation in the 
senate. It has an aspect of securing instead of abolishing the 
reserved rights of the states, This representation was not in- 
tended to create a sovereignty in Congress over the reserved 
rights of the states, but only as one check to secure a correct 

1—14 



208 SECESSION AND CONSTITUTIONAL LIBERTY 

exercise of the delegated powers. The rights of the states 
were not reserved to the senate of the United States, but to the 
states themselves; and are not conveyed to an imaginary na- 
tional government, upon the ground that their governments 
are represented in the senate. The journal of the convention 
shews that a national sovereignty, founded upon the principle 
of representation, was contemplated so long as the project for 
a national government prevailed; but it does not contain a 
solitary intimation, after that project was abandoned, that the 
representative character, either of the president, the senate, 
or the house of representatives, conferred sovereign or su- 
preme powers on one or all of these departments, as had been 
contemplated before a federal system was adopted. If repre- 
sentation is necessarily attended by sovereignty or supremacy, 
the Congress under the confederation was indeed a sovereign 
body, but a very dull one, in not having made the discovery; 
and no limitations of power can be created by constitutions 
which resort to representation, if it inherently possesses the 
quality of turning agents into sovereigns. 

"Suppose it is admitted, as Mr. Hamilton seems to intimate, 
that the constitution has created two sovereignties, one of the 
federal and the other of the state governments. By dividing 
sovereignty into portions, and calling the portion of state 
governments exclusive, he states a very plain case. The own- 
ers of a loaf of bread divide it between two persons. The 
donation of one half, does not imply a right to eat up the other 
half. If the state governments possess exclusive sovereign 
powers, they cannot be deprived of this exclusiveness by their 
representation in the senate; and if that representation does 
not deprive them of their exclusive powers, it conveys nothing 
at all. It follows, that the powers of the federal government 
are derived from the constitution, and in no degree from repre- 
sentation. Under the constitution, it is a limited government ; 
by inferring sovereignty from representation, it would become 
unlimited." * 

"Let us add a few other arguments to those before advanced 

♦John Taylor, of Caroline, "Views on the Constitution," pp. 64-66; 
1823. 



APPENDIX 6 209 

upon a point which really includes the whole question. Under 
what authority have the several cessions of territory been 
made by particular states? One, I believe, has been made by 
Georgia, since the establishment of the federal constitution. 
A cession of territory is a very plain act of sovereignty. If 
the states had no original or inherent political rights, these 
cessions are void; if the cessions are good, the assertion is 
false. 

"Upon what principle has the constitution declared, that no 
new state shall be formed within the jurisdiction of another 
state, nor by uniting two states or parts of states, without the 
consent of the legislatures of the states concerned, and of 
Congress? Undoubtedly for combining a sovereign and a 
federal consent, to effect an act, by which both the sovereign 
and the federal interest might be affected. If a territorial 
dismemberment cannot take place, except by the consent of the 
state possessed of the territorial sovereignty, no dismember- 
ment of any other rights possessed by the same sovereignty 
can take place, except by its consent also; and the federal 
government or the federal court, might claim a power to regu- 
late the territories of the states, upon as strong ground as they 
claim a power to regulate the other sovereign rights of the 
states, not ceded but reserved, like the sovereign right of ter- 
ritory. In short, by what tenure does the federal government 
hold the ten miles square, and the sites for forts, arsenals, and 
other federal buildings, if the states are not invested with sov- 
ereignty ? 

"The doctrine 'that the constitution has established a su- 
preme national government, and that the states are only cor- 
porations having no inherent and original rights,' would reach 
and destroy the state sovereign right of territory, if it can 
reach and destroy any other sovereign right reserved by the 
states. But sovereignties and corporations are very easily 
distinguished. Sovereignty is distinctly seen in the rights to 
create a political society, to form leagues, to cede territory, to 
punish crimes, and to regulate property. Are corporations de- 
fined by such powers? As states and corporations have no 
resemblance in their origin or powers, a violent zeal for a con- 



210 SECESSION AND CONSTITUTIONAL LIBERTY 

solidated government can only mistake one for the other; 
just as some hidden light within makes us see strange sights 
without. The term corporation, implies a derivation from a 
sovereign power, and the term state, a sovereignty. One is 
associated with the idea of dependence, and the other, of inde- 
pendence. Common sense never thought of proclaiming to 
the world the sovereignty and independence of thirteen cor- 
porations. What a figure would they have cut with such a 
declaration to prepare the way for a treaty with France? 
Corporations are the creatures and subjects, and also proofs 
of sovereignty. Hence the states, being sovereign, can em- 
power their governments to create counties and corporations, 
as objects like individuals for sovereign power to act upon; 
and corporations or counties being subjects, cannot create 
other corporations and counties, constitute a state, cede terri- 
tory, regulate property, or pass laws for punishing crimes. 
The rights of towns, counties, or corporations were not re- 
served, because they were subjects of sovereignties, whose 
rights were reserved. Whence did the reserved rights origi- 
nate? Had they originated from an American nation, they 
would have been given and not reserved ; and they must have 
been enumerated, like the rights given to the federal govern- 
ment. As the reserved rights were not given by an American 
nation, the states, as corporations, can have none. To find 
receptacles for the reservation, we must find rights ; and if we 
can find rights, as they were not derived from the sovereignty 
of an American nation, we must find some other sovereignty 
having power to create them. We are therefore reduced to 
the alternative of admitting the sovereignties of the states, or 
allowing that the states are incorporated subjects of an imagi- 
nary American nation, and liable to be modified or abolished 
in virtue of its sovereignty. 

"A corporate character implies a derivation from, and sub- 
jection to, some sovereignty ; and a power to modify or abolish 
this corporate character, designates the exact place where the 
sovereignty resides. The federal government is derived from, 
and may be modified or abolished by the states; and its cor- 
porate character is its only tenure, good only on account of 



APPENDIX 6 211 

the validity of the sovereignties by which it was bestowed. 
The style of the constitution, however hackneyed by construc- 
tion, admits the fact explicitly. It is not 'We, the people of 
the united corporations of New-Hampshire,' &c. Could cor- 
porations, having no political powers, both create and retain 
the right of altering or resuming political powers? If not, the 
gift and limitation of federal powers, united with an actual 
exercise of the sovereign power of resuming and modifying 
them, point both to a sovereign and a corporate character. If 
we should admit that the sovereignty thus exercised, is spuri- 
ous, its issue must also be spurious; and if we contend for the 
legitimacy of the issue, the parental competency to produce 
it, must be admitted. 

"These observations are alone sufficient to refute the posi- 
tions assumed in the convention, ... as the only basis for a 
supreme national government, contended for and denied by the 
parties for and against it. The first party assumed the ground 
work . . . that on the meeting of the convention, all the 
elements of political power returned to the people, to receive 
a new modification and distribution by their sovereign will.' 
That which had never been possessed, could not be returned. 
Did a consolidated American nation ever possess all the ele- 
ments, or any of the elements, of political power? A 
few gentlemen made a nation, only that they might make a 
consolidated government, either of a monarchical or national 
complexion. The federal party denied that any of the ele- 
ments of political power were dissolved by the meeting of the 
convention ; asserted that the meeting itself flowed from exist- 
ing political power; and that its proceedings must be exposed 
to the ratification and future alteration of this state political 
power, thus recognised as existing. It was a strange dissolu- 
tion of political elements, which no body perceived; and as 
credible, as if we were told that an eclipse of the sun had pro- 
duced total darkness for several months, though we were all 
daily enjoying its light and warmth. If all the elements of 
political power ceased on the meeting of the convention, those 
only can exist, which were revived by the constitution. But 
it does not revive, and only reserves, state rights. Powers 



212 SECESSION AND CONSTITUTIONAL LIBERTY 

which were dead, could not be reserved. If the^ convention 
had not framed a constitution, or the states had not ratified it, 
would no elements of political power have existed ? 

"The meeting of the state conventions must have been pe- 
culiarly inauspicious, and provokingly irksome, under this doc- 
trine. All the elements of political power were gone. 
Whither? To these conventions? No. They could only 
ratify or reject the constitution. To that or to this dissolution 
of political power, their alternative was confined. They could 
not revive any of these elements, not revived by that federal 
instrument. Had the conventions of states been equivalent 
to the convention of a consolidated nation, or a representation 
of an American people, they might have modified political 
power without restriction ; but as they were only state organs 
for expressing a state opinion, acceding to or rejecting a 
federal compact between states, they had no power, if they 
were so inclined, to change the existing political elements into 
a national government, republican or monarchical. As these 
conventions did not receive all the elements of political power, 
but were limited to a single act, they were not the represen- 
tatives of an American nation, and thence arises a complete 
refutation of the construction which supposes that the words 
'We, the people of the United States/ had any reference to a 
consolidated nation; since the convention of such a people 
would have constituted an unrestricted element of political 
power. The truth is, that the idea of a consolidated nation 
crept out of the convention, where it was invented before the 
state conventions were even mentioned, and settled itself in 
the minds of those gentlemen who still have in view one or the 
other of the forms of government it was started to produce. 
But if it is not too late to revive it, after the rejection of these 
forms, and after the establishment of a federal government, 
founded upon the co-equal sovereignties of the states, the 
constitution is rotten at its base, and the superstructure must 
be forever tottering.' ' * 

"The notoriety of this deception is fully illustrated by recol- 

*John Taylor, of Caroline, "New Views of the Constitution," pp. 
182-186; 1823. 



APPENDIX 6 213 

lecting, that the states, by their deputies (and they could only 
do it by deputies), had made themselves sovereign and inde- 
pendent; that they had already united in virtue of that char- 
acter; that in virtue of that character, they had appointed 
deputies to frame a more perfect union ; that by these deputies 
they voted as states; that they ratified the constitution as 
states; that they immediately amended it as states; that they 
reserved the supreme power of altering it as states ; that they 
vote in the senate as states; and that they are represented as 
states in the other federal legislative branch. Further, the 
declaration of independence was never repealed. Its annual 
commemorations demonstrated, and continue to demonstrate, 
a publick opinion, that it still lives; and the constitution did 
not confer sovereignty and independence upon the federal 
government, as the declaration of independence had done upon 
the states. On the contrary, by the constitution, the states may 
take away all the powers of the federal government, whilst 
that government is prohibited from taking away a single power 
reserved to the states. Under all these circumstances, is it 
possible that any one state of the union, in ratifying the consti- 
tution, which literally conformed to previous solemn acts, to 
previous words and phrases, and to the settled rights of the 
states, entertained the most distant idea, that it was destroying 
itself; betraying its people; establishing a national govern- 
ment ; and creating a supreme negative over all its acts, politi- 
cal and civil, or political only, with which the federal govern- 
ment, or one of its departments, was invested by implication. 
"Sovereignty is the highest degree of political power, and 
the establishment of a form of government, the highest proof 
which can be given of its existence. The states could not have 
reserved any rights by the articles of their union, if they had 
not been sovereign, because they could have no rights, unless 
they flowed from that source. In the creation of the federal 
government, the states exercised the highest act of sover- 
eignty, and they may, if they please, repeat the proof of their 
sovereignty, by its annihilation. But the union possesses no 
innate sovereignty, like the states; it was not sel f -constituted ; 
it is conventional, and of course subordinate to the sovereign- 



214 SECESSION AND CONSTITUTIONAL LIBERTY 

ties by which it was formed. Could the states have imagined, 
when they entered into a union, and retained the power of 
diminishing, extending, or destroying the powers of the fed- 
eral government, that they who 'created and could destroy/ 
might have this maxim turned upon themselves, by their own 
creature; and that this misapplication of words was able both 
to deprive them of sovereignty, and bestow it upon a union 
subordinate to their will, even for existence. I have no idea 
of a sovereignty constituted upon better grounds than that of 
each state, nor of one which can be pretended to on worse, 
than that claimed for the federal government, or some portion 
of it. Conquest or force would give a much better title to 
sovereignty, than a limited deputation or delegation of author- 
ity. The deputations by sovereignties, far from being consid- 
ered as killing the sovereignties from which they have derived 
limited powers, are evidences of their existence; and leagues 
between states demonstrate their vitality. The sovereignties 
which imposed the limitations upon the federal government, 
far from supposing that they perished by the exercise of a 
part of their faculties, were vindicated, by reserving powers 
in which their deputy, the federal government, could not par- 
ticipate; and the usual right of sovereigns to alter or revoke 
their commissions. 

"If, under all these circumstances, the states could never 
have conceived that they had, by their union, relinquished their 
sovereignties; created a supreme negative power over their 
laws ; or established a national government ; their opinion 
ought to be the rule for the construction of the constitution. 
And if the constitution has, by implication, effected all these 
ends without their knowledge or consent, it is certainly the 
most recondite speculation that was ever formed, and the 
states of all cullies, the most excusable." * 

"Those who deal most in paradox and superlatives, find the 
least truth. The consolidating school contends that we have 
two sovereignties; but that one is sovereign over the other; 
Mr. Hamilton, that we have co-ordinate sovereignties, each in- 

*John Taylor, of Caroline, "Views on the Constitution," pp. $6, 37; 
1823. 



APPENDIX 6 215 

vested with exclusive powers, but that one is made superlative 
by the representation in the senate. That a federal senate 
should beget a national sovereignty, if we have one, is a politi- 
cal curiosity. These superlative sovereignties, in all their 
forms, have been less friendly to human happiness, than lim- 
ited, divided, and balanced powers. Lodged either in a mon- 
arch, an aristocracy, or a representative body, they have an 
innate tendency towards tyranny. Lodged in one government, 
they have disclosed combinations among its members to extort 
from the people as much property as possible. They are uni- 
formly oppressive in a high degree, when the territory is 
extensive. Such imperfections of a superlative sovereignty, 
indicated our improvement of a system for checking it, other- 
wise than by the agency of its own members, or of its own 
will. By returning to a sovereignty consolidated in one gov- 
ernment, we should revive all the evils of which a superlative 
sovereignty has been productive, and surrender all the benefits, 
hitherto derived, from having superadded to the English mode 
of restraining the excesses of sovereignty condensed in one 
government, the new remedy of assigning different powers to 
two. The hostility of consolidated sovereignties to human 
happiness, is frequently demonstrated by their recourse to 
paradoxical arguments, in order to defend their measures. 
They contend, that the greater the revenue, the richer are the 
people; that frugality in the government is an evil; in the 
people, ,a good; that local partialities are blessings; that 
monopolies and exclusive privileges are general welfare; that 
a division of sovereignty will raise up a class of wicked, in- 
triguing, self-interested politicians, in the states; and that 
human nature will be cleansed of these propensities by a sov- 
ereignty consolidated in one government. But in proportion 
as power becomes superlative, its ambition and avarice are in- 
flamed; and our division of it between two governments, is 
one more attempt, in addition to those which have been un- 
successful, to assuage the inflammation, and diminish its 
malignity. The consolidating school rejects the experiment, 
however hopeful, and contends, that it degrades the federal 
government below the English standard. Such is the argu^ 



216 SECESSION AND CONSTITUTIONAL LIBERTY 

ment of limited kings, and such the motive by which they are 
stimulated to acquire the power enjoyed by absolute monarchs. 
The morbid suggestions of envy cause them to look with 
longing eyes upon a superiority of power; and it will not be 
contrary to human nature, if our statesmen should also con- 
template the situation of English statesmen, as more desirable 
than their own, and should languish for an equal degree of 
exaltation." * 

"An adherence to our original principle of state sovereignty 
is demonstrated both by the confederation and constitution. 
Unanimity was necessary to put the first, and a concurrence of 
nine states to put the second, into operation. The operation 
of the first, when ratified, was to extend to all the states, and 
the operation of the second, 'to the states ratifying only/ 
Both consequences are deduced from state sovereignty, by 
which one state could defeat a union predicated upon unanim- 
ity, and four states might have refused to unite with nine. 
The latter circumstance displays the peculiar propriety of or- 
daining and establishing the constitution 'for the United States 
of America/ The refusing states, though states of America, 
did not constitute a portion of an American nation; and their 
right of refusal resulted from their acknowledged sovereignty 
and independence. The United States of America' would 
have consisted of nine states only, had four refused to accede 
to the Union; and therefore thirteen states could not have 
been contemplated by the constitution, as having been consoli- 
dated into one people. Hence it adheres to the idea of a 
league, by a style able to describe 'the United States of Amer- 
ica/ had they consisted but of nine, and avoids a style appli- 
cable only to one nation or people consisting of thirteen states. 
By acknowledging the sovereignty of the refusing, it admits 
the sovereignty of the concurring states. Assent or dissent, 
was equally an evidence of it. The limitation of federal 
powers by assent, establishes the principle from which the as- 
sent flowed. There could be no sound assent, nor any sound 
limitation, unless one was given, and the other imposed, by a 

* John Taylor, of Caroline, "New Views on the Constitution," pp. 66-68; 
1823. 



APPENDIX 6 217 

competent authority; and no authority is competent to the 
establishment of a government, except it is sovereign. The 
same authority could only possess the right of rejecting the 
constitution. Had it been the act of an American nation or 
people, a state would have possessed no such right. The 
judicial sages have allowed the federal to be a limited govern- 
ment, but how can it be limited if the state sovereignties by 
which it was limited, do not exist, and if the state powers 
reserved, which define the limitation, are subject to its control? 
"Having proved that state sovereignties were established by 
the declaration of independence; that their existence was as- 
serted by the confederation of 1777; that they are recognised 
by the constitution of 1787, in the modes of its formation, 
ratification, and amendment; that this constitution employs 
the same words to describe the United States, used by the two 
preceding instruments; that the word state implies a sovereign 
community; that each state contained an associated people; 
that an American people never existed; that the constitution 
was ordained and established, for such states situated in 
America, as might accede to a union; that its limited powers 
was a partial and voluntary endowment of state sovereignties, 
to be exercised by a Congress of the states which should unite; 
that the word Congress implies a deputation from sovereign- 
ties, and was so expounded by the confederation; and that a 
reservation of sovereign powers cannot be executed without 
sovereignty; the reader will consider, whether all these prin- 
ciples, essential for the preservation both of the federal and 
state governments, were intended to be destroyed by the details 
of the constitution. The attempt to lose twenty-four states, 
in order to find a consolidated nation, or a judicial sovereignty, 
reverses the mode of reasoning hitherto admitted to be correct, 
by deducing principles from effects, and not effects from prin- 
ciples. But in construing the constitution, we shall never 
come at truth, if we suffer its details, intended to be sub- 
servient to established political principles, to deny their alle- 
giance, and rebel against their sovereigns. A will to act, and a 
power to execute, constitutes sovereignty. The state govern- 
ments, says the Federalist, are no more dependent on the 



2i8 SECESSION AND CONSTITUTIONAL LIBERTY 

federal government, in the exercise of their reserved powers, 
than the federal government is on them, in the exercise of its 
delegated powers, 

"The treaty between his Britannick majesty and the United 
States of America, acknowledges 'the said United States, viz., 
New-Hampshire, Massachusetts-Bay, Rhode-Island and 
Providence Plantations, Connecticut, New- York, New-Jersey, 
Pennsylvania, Delaware, Maryland, Virginia, North-Caro- 
lina, South-Carolina, and Georgia, to be free, sovereign, and 
independent states; as such he treats with them, and relin- 
quishes all claim to their government and territorial rights.' 
This king acknowledges, individually, the sovereignty of the 
states; he relinquishes to them, individually, his territorial 
rights; three eminent envoys demanded this acknowledgment 
and relinquishment, as appertaining, individually, to the states ; 
a Congress of the United States ratified the act and the doc- 
trine; the treaty was then unanimously hailed, and is still 
generally considered, as a consummation of right, justice, and 
liberty; but now it is said that the states are corporations, 
subordinate bodies politick, and not sovereign. By the ad- 
mirers of royal sovereignty, the treaty ought to be considered 
as valid ; by those who confide in authority, it ought to be con- 
sidered as authentick; by such as respect our revolutionary 
patriots, it ought to be venerated ; and by honest expositors of 
the constitution, it will be allowed to afford conclusive proof, 
that the phrase 'United States of America/ used both in the 
treaty and the constitution, implied the existence, and not the 
abrogation, of state sovereignty. Consolidators, suprematists, 
and conquerors, however, will all equally disregard any instru- 
ment, however solemn and explicit, by which ambition and 
avarice will be restrained, and the happiness of mankind im- 
proved." * 

"There must have been some general principle, to which 
these special delegations, reservations, and prohibitions, re- 
ferred, because if none existed, and the constitution had cre- 
ated a supreme power, able to prohibit the states from exer- 

*John Taylor, of Caroline, "Views of the Constitution," pp. 175-177; 
Wash., 1823. 



APPENDIX 6 219 

cising rights not prohibited, and to allow the federal govern- 
ment to exercise rights not delegated, both delegations and 
prohibitions would have been useless and absurd; and there- 
fore the existence of such a principle can alone make either 
substantial. A previous principle must be admitted, to sustain 
both exceptions and delegations. None can be found, except 
a sovereignty able to bestow power, and to impose limitations. 
To evade an argument so conclusive, recourse is had, first 
to the acknowledged sovereignty of the people, and secondly 
to a fabulous consolidated American nation; and the fable is 
made to supplant the fact. The fact is, that the people and 
the states are one and the same; but the fable supposes that 
the states are distinguishable from the people, not to sustain, 
but to destroy the principle, to which all our delegations, reser- 
vations, and prohibitions of power, refer. When we speak 
of Pennsylvanians or Virginians, it would be absurd, if these 
people had not constituted themselves into states. The state 
of Pennsylvania means the people of Pennsylvania. The con- 
stitution, by reserving powers to the states or to the people, 
recognises the words states and people, as perfectly equivalent, 
and does not intend to express the absurd idea, that either 
A or B shall exercise powers, without defining which shall 
do so. The word or, is used to connect repetitions, and not 
to express a contrariety. Admitting the latter to be the idea 
intended to be expressed, yet the states, whatever they may 
be, may exercise the same powers with the people. That they 
are, however, the same with the people, results from the 
recollection that the state governments are not the states. 
They are instruments used by the states or the people, for 
exercising the powers reserved to them. The ingenuity of 
dividing states from the people, consists in this. A sovereignty 
of the people may be acknowledged as resting in an American 
nation, to which the delegations, reservations, and prohibi- 
tions, of the constitution, have no reference, as all are excep- 
tions referring to state sovereignties, and none of course can 
operate as exceptions to the fabulous national sovereignty. If, 
therefore, the federal government can acquire a sovereignty 
over the sovereignties referred to by the constitution, as being 



220 SECESSION AND CONSTITUTIONAL LIBERTY 

the representative of a great fabulous nation, hone of these 
delegations, reservations, and prohibitions, can balance, check, 
or control its power. And in this way an acknowledgment 
of the sovereignty of the people is made to destroy their sov- 
ereignty, by subverting the original principle to which the 
delegations, reservations, and prohibitions of the constitution 
refer. 

"Why are the states prohibited from taxing imports and 
exports? Because it was a right included by the established 
principle of state sovereignty, which right the states con- 
sented to relinquish. Why was the consent of Congress re- 
quired to state laws in relation to duties, keeping troops in 
time of peace, or entering into compacts? Because these also 
were rights included in the principle of state sovereignty, sub- 
jected to a limited federal control. Had a national sovereignty 
existed, that would have possessed a general control over the 
state sovereignties, of which these subordinate sovereignties 
could not deprive it, by limited exceptions in favour of a fed- 
eral department. Two of these sovereign state rights, of the 
highest order, those of keeping armies and engaging in war 
under certain circumstances, are retained by the states, for 
the purpose of self-defence. The consent of Congress to 
particular state acts would not have been required, if a fed- 
eral or national supremacy over any other state acts existed; 
and the sovereign state right of self-defence, would not have 
been retained by subordinate corporations. The specification 
of particular cases, in which the consent of Congress is re- 
quired, admits an independent power in state legislation, as to 
those cases in which the consent of Congress is not required. 
The concurrent powers of the state and federal governments, 
to tax, and to defend themselves, are happily contrived for 
sustaining the mutual independence and control between these 
primary divisions of power; and if one could impose on the 
other a subordination in either of these powers, it would very 
soon absorb all the rest. If it is admitted that the federal gov- 
ernment possesses no supremacy over the two reserved state 
rights of taxation and self-defence, it follows that all other 
reserved state rights are held independently of any federal 



APPENDIX 6A 221 

supremacy. If these two rights are incidents of an original 
state sovereignty, all the other reserved rights must originate 
from the same source. The states have retained a right to 
defend themselves, if invaded by a federal army, because the 
constitution was not to be construed by force, but by the 
mutual control, and if that failed, by three-fourths of the 
states themselves." * 



APPENDIX 6A 

{Page 206) 

Mr. Adams was possibly thus aggrieved by "The Solemn 
Declaration and Protest of the Commonwealth of Virginia," 
the production of Mr„ Jefferson, which asserts that 

"The federal branch has assumed ... a right of enlarging 
its own powers by construction, inference . . . They claim 
for example ... a right to construct roads, open canals, and 
effect other internal improvements within the territories and 
jurisdiction exclusively belonging to the several States/' etc., 
etc. f 

The principles underlying this "Protest" are condensed in 
a masterly presentation by John Taylor of Caroline : 

"The question, 'whether a legal power can be constitution- 
ally used to impair or destroy the principles of our policy/ has 
been already brought before the publick in the efforts of the 
general government to distribute gain or loss between the 
states by protecting duties, banking charters, making canals 
and roads, and other legal benefactions. The children of a 
father who lives forever, but annually makes a division of 
their property according to his own pleasure, are his slaves. 
If the general government gains a similar position in rela- 
tion to the people and to the states, the principles of a division 
of power, of its responsibility, or protecting property, of its 
division by industry, of state confederation, and indeed all 

* John Taylor, "New Views on the Constitution," pp. 231-233; 1823. 
tv. Appendix 19. 



222 SECESSION AND CONSTITUTIONAL LIBERTY 

other principles constituting a genuine republick, are abol- 
ished." * 

"In legislation contrary to genuine republican principles, 
sustained by a dominant party zeal, lies, in my view, the great- 
est danger to the free form of government of the United 
States; nor can I conceive any augmentation of the danger, 
equivalent to an exercise of the power of distributing wealth 
by law. If, therefore, these essays should only prove, that 
it is the office of a republican government to protect, but not 
to bestow property, they may protract the period during which 
our government may remain the servant of the nation. For 
as worldly omnipotence is annexed to a power of dealing out 
wealth and poverty, nations are universally retributed for the 
folly and impiety of submitting to this species of human provi- 
dence, by a divine decree, that it shall unexceptionably convert 
these servants into masters and tyrants." f 

In other words, as Professor Sumner puts it pithily: "A 
free man cannot take tips." X 

It is "significant," indeed, to compare the foregoing with 
the fact stated by Mr. Holland (p. 15 of Preface), or with 
the praise one may read any day in any paper of the present, 
accorded a representative for urging some appropriation for 
his State for an institution, or for a class. 

Mr. Taylor's diagnosis of the necessary political results of 
the cancer of "protection" (and similar governmental benevo- 
lences), made, as it was, before its infiltration through the 
whole American body politic had become evident, seems so self 
evident (brief and to one point only, as it is), so independent of 
the knowledge of political economy, so obvious to the most 
ordinary "common sense," that to reflect on its denial is al- 
most to despair of true democracy. For no doctrine more 
than that of protection is more fittingly described in Nassau 
Senior's words (quoted from memory) : "The most odious, 
and perhaps the most mischievous form of robbery is that to 

* Inquiry into the Principles and Policy of the Government of the 
United States," pp. 648-9; 1814. 
f Ibid., pp. 655-656. 
t "What Social Classes Owe to Each Other." 



APPENDIX 6A 223 

which government makes itself accessory." And if a people 
can be led wholesale into the condonation of theft so destruc- 
tive of freedom, either under self interest, or gulled by the 
words of self interest, what hope for that people? 

The writings of Mr. Taylor are full of this prophetic in- 
sight; e.g., 

"To define the nature of a government truly, I would say, 
that a power to distribute property, able to gratify avarice and 
monopoly, designated a bad one ; and that the absence of every 
such power, designated a good one. 

"Of what value is an exchange of one system of monopoly 
for another? How shall we estimate the difference between 
noble and clerical orders, and between combinations of ex- 
clusive pecuniary privileges ? Is pure avarice better than some 
honor and some sanctity? The encroachments upon property 
by noble and clerical combinations, once fixed by law, remained 
stationary; and each individual could calculate his fate with 
some certainty; but pecuniary combinations, once sanctioned 
as constitutional, will perpetually open new channels, and 
breed new invaders, whose whole business it will be, to make 
inroads upon the territories of industry." * 

"If in England, representation, united with a concentrated 
supremacy, though assisted by a sympathy infinitely more per- 
fect, fosters instead of checking wicked combinations, what 
would be the effects of our representation in Congress, un- 
controlled by state rights, and urged by local interests to 
perpetrate geographical partialities? Success in obtaining lo- 
cal advantages would be considered as an evidence of patriot- 
ism by state representatives in Congress, and approved by 
their constituents; but it would be considered as fraudulent, 
and resisted as tyrannical, by the injured states. The malig- 
nity of a concentrated power to a free and fair government, 
being greater here than in England, it required better con- 
trols than have been there ineffectual; more especially as it 
would destroy our happy union. Geographical partialities 
would excite more indignation, than the patronage of indi- 

* John Taylor, of Caroline, "Construction Construed," p. 15. Rich- 
mond, 1820. 
1—15 



224 SECESSION AND CONSTITUTIONAL LIBERTY 

vidual and corporate interests, involved in a national mass, 
prevented from acting in great combinations by an inextricable 
complication, and uncombined by distinct geographical cir- 
cumstances. Oppressed or plundered states would do what 
Ireland is unable to do. If the national government proposed 
in the convention had succeeded, it could not have obliterated 
the local interests established by nature ; and these would have 
remained as a pledge for a revolution. Even under the limi- 
tations of the constitution, local prejudices and partialities 
have been disclosed in Congress, and these occurrences have 
excited local resentments. A supreme power in the federal 
government over state rights, would accumulate local aggres- 
sions and dissatisfactions . . ." * 

"Had it been proposed in forming our constitutions, to in- 
vest government with a power (over and above the power 
of exacting contributions for publick use) of taking away 
the property of some and giving it to others, it would have 
been rejected with indignation; yet this power is as much 
exercised by bestowing gratuities or exclusive privileges, as 
if the individuals, impoverished and enriched, had been named. 
This evasion of the freedom of property is particularly fraud- 
ulent, when a new society is constituted of men previously 
divided into distinct sects or occupations. Then the names 
of these sects or occupations are exactly the same as the 
names bestowed on infancy, as a medium for transferring 
property from one to another, and more difficult to ex- 
change, in order to elude the imposition. Suppose, that at the 
period when the Highlands of Scotland were inhabited by a 
very few cognominal families, these families had united in 
a civil government by the names of tribes, either in the terms 
of the state or federal constitutions. In the first case, an 
assumption of power by their government to tax one family 
or tribe to enrich another, would have been exactly equivalent 
to state exclusive privileges in favour of some occupations, 
and injurious to others. In the second, an assumption of the 
same power would also have had this effect, and would more- 

* John Taylor, of Caroline, "New Views on the Constitution," p. 247 ; 
1823. 



APPENDIX 6A 225 

over have resembled partialities on the part of congress for 
and against particular states. The endowment of one class 
of men by the names of their occupations, at the expense of 
another, is evidently the same in substance, as to tax the 
McGregors to enrich the McDonalds. All these cases, how- 
ever modified, are an actual subjection of labour and free 
will for self good, to the use of avarice; and if this be not 
tyranny, I know not what is so/' * 

"It was an object of our constitutions to secure a common 
feeling between legislators and constituents under the opera- 
tion of laws, whether good or bad. This is confessed to be a 
wise and just, and some think, an indispensable security for 
good laws. Can a legislator, who gives away the publick 
money to his friends, his clients, or his partisans; who is in- 
terested in the traffick of corporations to be created and nur- 
tured by his laws, or who can increase his own wages by pro- 
tracting a session in trying private suits, be any other than a 
representative of himself? 

"Congress has already enlisted state governments among 
its clients, and these, like Roman provinces, are reduced to 
the necessity of providing patrons in the senate. An union 
between legislation and patronage will enlist an assortment 
of suitors, composed of individuals who ask for dollars, of 
companies who ask for millions, and of states which ask for 
bounties, roads and canals. Patronage begets clientship. 
States will soon vociferously demand local favours, to bal- 
ance other local favours. Why should not congress endow 
schools in the old, as well as the new states? I see no end 
to the parties, intrigues and animosities, by an usurpation on 
the part of the federal government of internal and local pow- 
ers, and of unlimited patronage. These will not be less dan- 
gerous, for being geographical. Federal favours are at first 
silken fetters to the states, which will gradually be converted 
into iron by the menstruum of precedents, as soft stones ex- 
posed to the atmosphere become hard." f 

"To discover whether actual tyranny is coming or has ar- 

* John Taylor, "Construction Construed," pp. 204-205 ; Richmond, 1820. 
^ Ibid., p. 270. 



226 SECESSION AND CONSTITUTIONAL LIBERTY 

rived, let us endeavour to establish some unequivocal evidence, 
by which tyranny may be known; some characteristick, as 
obvious to the senses as the difference of colours ; and as clear 
to the understanding, as that two and two make four. The 
plain good sense of mankind has long since escaped from 
the intricacy of metaphysical reasoning, and discovered an 
infinitely more certain mode of ascertaining the existence of 
tyranny; but the artifices of ambition and avarice have con- 
stantly laboured to extinguish a light too luminous for their 
designs, and to perplex evidence too strong to be denied. 
When nations are induced, by the dexterities of ambition and 
avarice, to sear their senses against the plainest of all truths, 
their situation becomes hopeless, and their subjection to ac- 
tual tyranny certain. The conviction of the truth of that 
which I am about to advance, is so universal, that abuses never 
evade its force, by urging that present evils will produce fu- 
ture good. They either endeavour to hide actual tyranny by 
some eulogized theory, or to draw off the publick attention 
from it, to some distant prospect embellished by the imagi- 
nation, or to win confidence by ample promises. There is no 
resource for defeating such artifices, but that of clinging to 
the universal conviction of mankind. 

"Money is a more accurate measure of liberty and tyranny, 
than of property. It is not only the best, but the only perma- 
nent measure to which civilized nations can resort, to ascer- 
tain their quantum of either, and for discovering whether 
tyranny is growing or decaying." * 

"When Congress was divided into two parties, called fed- 
eral and republican, only theoretically sectarian, and not geo- 
graphically united, each had its own fashion of construing the 
constitution. The fluctuating constructions of money-hunting 
parties would be worse guardians for state rights, or for secur- 
ing the purity of the constitution, than honest zealots. But 
now that these honest zealots no longer balance each other, 
a federal college of censors, either legislative or judicial, would 
be exposed to no check in deciding whether federal powers 

*John Taylor, of Caroline, "Tyranny Unmasked," pp. 292-293; Wash- 
ington, 1822. 



APPENDIX 6A 227 

ought to be increased or controlled. When the parties were 
nearly equal, and contending for the favour of the people, 
though contradictory constitutional constructions were pro- 
duced, such excesses were avoided as would expose one party 
to publick censure, and risque the loss of power. Whilst this 
check remained, the better check of co-ordinate departments 
was not so necessary as it is at present. Besides, so far as 
these parties were influenced by speculative opinions in rela- 
tion to the principles of government, they were expositors of 
the constitution, infinitely more honest than the geographical 
parties which a federal supremacy must produce. A specu- 
lative opinion may be upright; a geographical interest, op- 
posed to another, is always a knave. The trivial geography 
of a president, sufficiently demonstrated, that Congress would 
be a bad guardian of state rights, even with the assistance of 
its federal court." * 

These anticipations seem prophecy, partly accomplished in 
the actions reprobated by an impartial observer (who added 
statesmanship of the higher kind to other great gifts), at 
the time of South Carolina's nullification : "But when New 
England, which may be considered a state in itself, taxes the 
admission of foreign manufactures in order to cherish manu- 
factures of its own, and thereby forces the Carolinians, an- 
other state of itself, with which there is little intercommuni- 
cation, which has no such desire or interest to serve, to buy 
worse articles at a higher price, it is altogether a different 
question, and is, in fact, downright tyranny of the worst, be- 
cause of the most sordid, kind. What would you think of a 
law which should tax every person in Devonshire for the 
pecuniary benefit of every person in Yorkshire? And yet that 
is a feeble image of the actual usurpation of the New England 
deputies over the property of the Southern States," f and 
continuing to the present, when a recent non-political econo- 
mist states them as "the more and more complete surrender 

* John Taylor, of Caroline, "New Views on the Constitution," p. 252 ; 
1823. 

t Coleridge's "Table Talk," April 10, 1833. Edinburgh, 1905. 



228 SECESSION AND CONSTITUTIONAL LIBERTY 

of the Republican party to the character of a conspiracy to 
hold power and use it for plutocratic ends." * Perhaps to be 
fulfilled in the prediction of Landor, that this country will fall 
apart in "the driving sirocco of avarice." f 

"To be sure, modern times had already witnessed one great 
economic war. The American Civil War of the sixties of last 
century arose out of the economic antagonism between the 
trading and industrial States of the North and the cotton- 
growing States of the South of the Union. In the latter, 
cultivation by the aid of slaves formed the basis of the indus- 
try, and to this extent the slave question was a factor in the 
dispute. It was not, however, until later that the demand for 
the abolition of slavery found wide expression in the North 
and was utilized as a welcome means of stirring up feeling 
against the South. The real points at issue were that the 
Northern States wanted high protective duties, while the 
Southern States wanted to facilitate export, and that the 
Northern States had a special interest in utilizing the customs 
revenues for investments which should above all be of advan- 
tage to their trade, but which were a matter of indifference to 
the South. The American War of Secession, like everything 
else American at that time, attracted little attention with 
us. . . . Yet, different as were the cause, the development, 
and the other conditions of the American Civil War compared 
with the present World War, the economic factors which in 
each case found expression have engendered more than one 
similar phenomenon. The Northern States endeavoured at 
the outset, by the aid of their imposing fleet, to cut off the 
Southern States, which had no battle-fleet worth mentioning, 
from their seaborne supplies, and, also, on land, from the 
Mississippi and the corn-growing States of the Southwest, and 
thus paralyze them economically. The valour of the Southern 
troops, who were far inferior numerically, as well as of their 
generals, and, above, all, the distinguished leadership of Lee, 
for four years rendered impossible the accomplishment of this 

* William Graham Sumner, "Mores of the Present and Future," in 
"War, and Other Essays." 
t Letter to Southey, 1819. 



APPENDIX 7 229 

so-called "Anaconda plan," until the Southern States finally 
succumbed to the blockade." 

Baron von Freytag-Loringhoven, 
Deductions from the World War. N. Y., 19 18, p. 14-16. 

In a democracy in particular, the paternal government must 
become adjunct to all kinds of "big business/' labor organi- 
zations, etc., etc., which find in its manipulation their most 
valuable asset at the expense of the unorganized part of the 
community. 

APPENDIX 7 

{Page 36) 

The history of the adoption of these articles is thus sum- 
marized by a gentleman whose sympathies absolve him from / 
suspicion of overstating any matter enhancing "State Rights." 

"But if the framers of this primary bond of union required 
any apology [for its inadequacy] the student of history need 
look no further than to the condition of the American mind 
at the time of the Confederation. The original committee to 
prepare the plan had been appointed simultaneously with that 
which drafted the Declaration of Independence. At the end 
of a month the report was submitted, and after a brief dis- 
cussion, meeting with powerful opposition at the outset, it was 
suffered to lie unnoticed in Congress from month to month, 
despite the urgent appeals of its few advocates, until all but 
one of its originators had left that body. When it was at last 
taken up and adopted by Congress, they subjected it to a most 
rigid examination, and spared no pains to divest it of all pos- 
sible objectionable features; and yet, after all, there was a 
long and weary interval before the divergent interests and 
jealousies of the several States could be harmonized so as 
to secure a general acceptance. Where the stickling for State 
rights was so universal, and an instrument demanding so few 
concessions to the federal power was adopted with such re- 



2 3 o SECESSION AND CONSTITUTIONAL LIBERTY 

luctance, it is clear that any plan embodying a stronger cen- 
tral system would have entailed only a greater delay, if not, in 
the end, total rejection," etc., etc.* 

"By these articles [of Confederation] the nature of the 
confederation, and its objects, were clearly defined: the rela- 
tions of the states to each other, their separate powers, and 
those of congress, explicitly declared. They were adopted 
not by the people of the states, but by delegates who were the 
representatives of the respective state legislatures; who were 
expressly named as the constituents, who had authorized them 
to be ratified and confirmed, and in the name and in behalf of 
each; and which was so done by the delegates who signed 
the same accordingly; 4 Laws U. S. 19, 20. For present pur- 
poses it is necessary to refer only to three articles. 

" 'Art. 3. The said states" hereby severally enter into a 
firm league of friendship with each other, for their common 
defence . . . against . . . attacks made upon them, or any of 
them, on account of religion, sovereignty, trade, or any pre- 
text whatever. 

" 'Art. 9. The United States, in congress assembled, shall 
have the sole and exclusive right and power of sending and 
receiving ambassadors, and entering into treaties and alli- 
ances; provided that no treaty of commerce shall restrain the 
legislative power of the respective states, from imposing such 
imposts and duties on foreigners, as their own people are 
subjected to . . .' 1 Laws U. S. 16. 

"This alliance, league, or confederacy of the states with 
each other, can leave no doubt, that up to the time of the final 
ratification in March, 1781, each state was separately sov- 
ereign in its own inherent right; and so remained as to all 
power not expressly delegated, as was declared in the second 
article. The third article is also conclusive, that the object of 
the alliance was to maintain and perpetuate their separate sov- 
ereignty. This is the more manifest, when these articles are 
taken in connection with the alliance of the states with France. 
... as congress could not restrain the legislative power of 

* William V. Wells, "Life of Samuel Adams," Vol. II, 481; Boston, 
1865. 



APPENDIX 7 231 

the states over commerce, as resolved in April 1776, and de- 
clared in this article, provision was made on the subject in 
the 6th article ; 'no state shall lay any imposts or duties which 
may interfere with any stipulations in treaties entered into by 
the United States in congress assembled, with any king, 
prince, or state, in pursuance of any treaties already proposed 
by congress to the courts of France and Spain/ 1 Laws U. S. 
15. Those of commerce and alliance with France were made 
in 1776. The commissioners' credentials, and treaties, were 
in the name of 'the thirteen United States of North America, 
to wit : New Hampshire/ etc. 2 Secret Journal 7. 1 Laws 74, 
95; and the 2d article of the treaty of alliance declares its ob- 
ject most explicitly. 'The essential and direct end of the pres- 
ent defensive alliance, is to maintain effectually, the liberty, 
sovereignty, and independence, absolute and unlimited, of the 
said United States, as well in matters of government as of com- 
merce.' In the nth article, the parties make a mutual guar- 
anty; in that of France, 'His most Christian majesty guaran- 
ties, on his part, to the United States, their liberty, sovereignty, 
and independence, absolute and unlimited, as well in matters 
of government as commerce; also their possessions, and the 
additions or conquests that their confederation may make dur- 
ing the war' . . . 

"This guaranty was fulfilled by the treaty of peace, in which 
'His Britannic Majesty acknowledges the said United States, 
to wit; New Hampshire, etc., to be free, sovereign and inde- 
pendent states' . . . This recognition relating back to the 
separate or unanimous declarations of the states, as this Court 
have [has?] held it; has the same effect as if the state had then 
assumed the same position, by the previous authority of the 
King; the treaty not being a grant, but a recognition, and 
subsequent ratification of their pre-existing condition; and 
all acts which had declared and denned it previous to the 
treaty, related back to 1776. 

"Such being the relations of the several states, in their fed- 
eral and foreign concerns, it follows, that as to their internal 
concerns, they were in the same attitude of absolute and unlim- 
ited sovereignty, before the articles of confederation as they 



232 SECESSION AND CONSTITUTIONAL LIBERTY 

were afterwards, except so far as they abridged it. Each was 
a party to the treaty of alliance and peace, and each was bound 
by the guarantee to France after the confederation was abol- 
ished, and the constitution was established, as firmly as be- 
fore: the states who delayed their ratification remained so 
bound, for they could by no act of their own, impair the rights 
of France: and they were equally entitled to the effects of the 
treaty of peace, whether they became constituent parts of the 
Union, by ratifying the constitution, or remained foreign 
states, by not adopting it. Their state constitutions and gov- 
ernments remained unimpaired by any surrender of their 
rights ; so that of consequence, their sovereignty was perfect, 
so long as they continued free from any federal shackles; so 
the states acted, and so the people of each declared in all their 
conventions from 1776 to 1780. 

"Congress had recommended to the colonies to form gov- 
ernments 'on the authority of the people alone,' this was done 
by the states who adopted constitutions before, and after the 
declaration of independence; by the assertion of the people 
in the separate convention of each state, that they had by na- 
ture and inherent right, all the powers of government, and 
that none could be exercised by anybody unless by their au- 
thority. They applied to themselves all the principles an- 
nounced in their unanimous declaration in congress, in terms 
incapable of being misunderstood. 

"The people of Pennsylvania declared 'that all power being 
originally in and consequently derived from the people'; the 
community hath an indubitable, unalienable, and indefeasible 
right to reform, alter, or abolish government, in such man- 
ner, as shall be by that community judged most conducive to 
the public weal.' 

"The people of North Carolina declared that 'all the terri- 
tory within the bounds of the state was the right and property 
of the people, to be held by them in full sovereignty' ... In 
their sovereign character, the people of each state could cre- 
ate what corporations they pleased for their own governments, 
either by written or tacit delegation of power, as best pleased 
them ; their action in either mode had the same effect, whether 



APPENDIX 8 233 

the body politic to be created was for one, or all the states, it 
was the exertion of the same sovereign authority, as the 
people . . ." * 



APPENDIX 8 

{Page 37) 

"Note the distinction between the totality of sovereignty, 
freedom and independence retained, and the division between 
the powers, jurisdiction and rights delegated or retained. The 
former, which inhere in the civil body politic, are not impaired 
by a league or confederation to which a part of the sovereign 
powers, etc., may be delegated, while another part is re- 
served." f 

APPENDIX 9 

(Page 37) 

In view of the stress which has been laid upon the word 
"perpetual" in relation to the meaning of the Constitution, it 
is of some interest to note the opinion of a distinguished con- 
temporary as to its force in the minds of those who used it 
in the preceding instrument. 

"The zeal and ardor of the people during the revolutionary 
war, supplying the place of government, commanded a de- 
gree of order, sufficient at least for the temporary preservation 
of society. The confederation, which was early felt to be 
necessary, was prepared from the models of the Batavian and 
Helvetic confederacies, the only examples which remain, with 
any detail and precision, in history, and certainly the only ones 
which the people at large had ever considered. But, reflecting 
on the striking difference in so many particulars between this 
country and those where a courier may go from the seat of 

* Baldwin, "View of the Constitution," Phila., 1837. 

f "The Relations of the United States to each other, as Modified by 
the War and Constitutional Amendments," by John Randolph Tucker; 
1877. 



/ 



234 SECESSION AND CONSTITUTIONAL LIBERTY 

government to the frontier in a single day, it was then cer- 
tainly foreseen by some, who assisted in Congress at the for- 
mation of it, that it could not be durable." * 

APPENDIX 10 

{Page 39) 

"We are induced to hope that we shall not be altogether 
considered as foreigners, having no particular affinity or con- 
nection with the United States. But that trade and commerce, 
upon which the prosperity of this state much depends, will be 
preserved as free and open between this and the United States 
as our different situations at present can possibly admit." f 

APPENDIX 11 
{Page 39) 

"At length two great parties were formed in every state 
. . . The one ... in favour of enlarging the powers of the 
federal government . . . The other . . . were . . . led . . . 
to resist every attempt to transfer from their own hands into 
those of Congress, powers which by others were deemed es- 
sential to the preservation of the union. In many of the states, 
the party last mentioned constituted a decided majority of 
the people; in all of them it was very powerful . . . men of 
enlarged and liberal minds . . . who felt the full value of na- 
tional honour . . . and who were persuaded of the insecurity 
of both, if resting for their preservation on the concurrence 
of thirteen distinct sovereignties; arranged themselves gen- 
erally in the first party." % 

To the same effect, in Ogden vs. Saunders : 

"Our country exhibits the extraordinary spectacle of dis- 
tinct, and in many respects, independent, governments over 

- * John Adams, Inaugural Speech, 1797. 

f "Memorial from the State of Rhode Island and Providence Planta- 
tions September, 1789. To the President ... of the Eleven United 
States in Congress Assembled." 

$ Marshall's "Life of Washington," Vol. V, pp. 85, 88. 



APPENDIX ii 235 

the same territory and the same people . . . We cannot look 
back to the history of the times when the august spectacle was 
exhibited of the assemblage of a whole people by their repre- 
sentatives in convention, in order to unite thirteen independ- 
ent sovereignties under one government, as far as might be 
necessary for the purpose of union, without," etc.* 

These quotations, written of the period immediately previ- 
ous to the formation of the constitution, and relating to the 
efforts which led up to it, show most strikingly from the mouth 
of an opponent, that the separate States at that time were sov- 
ereign and independent communities. Indeed, the work from 
which I quote is entitled "Life of George Washington . . . 
an introduction containing a compendious view of the colo- 
nies . . . from their settlement to . . . that war which ter- 
minated in their independence." f Does the first "their" speak 
of them disjunctively, while that immediately following has 
the opposite force of unifying them? 

Extracts, too numerous for quotation, from Washington's 
own private letters and official communications, through the 
confederation, urging the Constitution, in his Presidency, 
show the same view of the several independency and original 
power and sovereignty of the States. 

"To these fundamental errors may be added another . . . 
all the business is now attempted, for it is not done, by a timid 
kind of recommendation from Congress to the States; the con- 
sequence of which is, that . . . each State undertakes to de- 
termine 1st: whether they will comply or not ... I do not 
scruple to add . . . that unless the States will . . . vest 
(Congress) with absolute powers . . . relative to the . . . 
purposes of war," etc.J 

"This, and ten thousand reasons, which I could assign, 
prove the necessity of something more than recommendatory 
powers in Congress." § 

* "Writings of John Marshall," pp. 662 et seq.; B., 1839. 

f Italics are the author's. 

t Washington to Fielding Lewis, July 6, 1780. 

§ Washington to Genl. Armstrong, March 26, 1781. 



236 SECESSION AND CONSTITUTIONAL LIBERTY 

"It remains only for the States to be wise, and to establish 
their independence on the basis of an . . . union.' ' * 

"This may be the ill-fated moment for relaxing the powers 
of the Union, annihilating the cement of the confederation, 
and exposing us to become the sport of European politics, 
which may play one State against another . . . For according 
to the system of policy the States shall adopt at this moment, 
they will stand or fall." 

"Although itmay not be necessary ... to enter into a par- 
ticular disquisition of the principles of the union, and to take 
up the great question which has frequently been agitated 
whether it be expedient and requisite for the states to delegate 
a larger proportion of power to congress or not, }> etc.f 

"It now rests with the Confederated Powers, by the line of 
conduct they mean to adopt, to make this Country great ... 
To suppose that the general concerns of this country can be 
directed by thirteen heads ... is a solecism, the bad effects 
of which every man who has had the practical knowledge to 
judge from, that I have, is fully convinced of." % 

"The disinclination of the individual States to yield compe- 
tent powers to Congress for the federal government, their 
unreasonable jealousy of that body and of one another . . . 
will ... be our downfall." § 

". . . We stand in a ridiculous point of view in the eyes of 
the nations of the world, with whom we are attempting to 
enter into commercial treaties, without means of carrying 
them into effect; who must see and feel that the Union or 
the States individually are sovereign, as best suits their pur- 
poses; in a word that we are one nation to-day and thirteen 
to-morrow! . . ." llA || 

"At present, or under our existing form of confederation, it 
would be idle to think of making commercial regulations on 
our part. One State passes a prohibitory law respecting some 

* Washington to Greene, March 31, 1783. 

t Italics by the author. Washington's Circular Letter to the Governors 
of the States, June 8, 1783. 

$ Washington to Gordon, July 8, 1783. 

§ Washington to Harrison, January 18, 1784. 

|| Washington to McHenry, August 22, 1785. 



APPENDIX ii 237 

article, another State opens wide the avenue for its admission. 
One Assembly makes a system, another Assembly unmakes 
it." * 

"It behoves us then to establish just principles ; and this . . . 
cannot be done by thirteen heads differently constructed and 
organized. The necessity, therefore, of a controlling power 
is obvious ; and why it should be withheld is beyond my com- 
prehension." f 

"... a measure, in which this State has taken the lead at 
its last session, will, it is to be hoped, give efficient powers 
to that body (Congress) for all commercial purposes. This is 
a nomination of some of its first characters to meet other com- 
missioners from the several States, in order to consider of 
and decide upon such powers, as shall be necessary for the 
sovereign power of them to act under; which are to be re- 
ported to the several legislatures . . . for, it is to be hoped, 
final adoption; thereby avoiding those tedious and futile de- 
liberations, which result from recommendations and partial 
concurrences." J 

Answering Jay's letter of June 27, 1786, he writes: 

"Be that as it may, requisitions are a perfect nullity, when 
thirteen sovereign, independent, disunited states, are in the 
habit of discussing, and refusing or complying with them at 
their option." 

"Thirteen sovereignties pulling against each other, and all 
tugging at the Federal head, will soon bring ruin on the 
whole." § 

"The alliance between the States under the old Articles of 
Confederation, for the purpose of joint defence against the 
aggression of Great Britain, was found insufficient, as treaties 
of alliance generally are, to enforce compliance with their mu- 
tual stipulations; and these once fulfilled, that bond was to 
expire of itself, and each State to become sovereign and in- 
dependent in all things. Yet it could not but occur to every 

* Washington to Lafayette, April 28, 1788. 

t Washington to James Warren, October 7, 1785. 

t Washington to Lafayette, May 10, 1786. 

§ Washington to Madison, November 5, 1786. 



238 SECESSION AND CONSTITUTIONAL LIBERTY 

one, that these separate independencies, like the petty States 
of Greece, would be eternally at war with each other, and 
would become at length the mere partisans and satellites of the 
leading powers of Europe/' * 

"The close of the war however brought no cure for the pub- 
lic embarrassments. The States relieved from the pressure 
of foreign danger, and flushed with the enjoyment of inde- 
pendent and sovereign power; (instead of a diminished dispo- 
sition to part with it,) persevered in omissions incompatible 
with their relation to the Federal Govt.," etc.f 

"The principal difficulties which embarrassed the progress, 
and retarded the completion of the plans of Confederation 
may be traced to i. the natural reluctance of the parties to a 
relinquishment of power : 2. a natural jealousy of its abuse in 
other hands than their own: 3. the rule of suffrage among 
parties unequal in size, but equal in sovereignty," etcj 

"But the radical infirmity of the Arts, of Confederation was 
the dependence of Cong., on the voluntary and simultaneous 
compliance with its Requisitions, by so many independent com- 
munities, each consulting more or less its own particular in- 
terests," etc.§ 

"Then to Mr. Peters, the Secretary to the Board of War 
. . . His house is not large, nor his office of great importance ; 
for every thing which is not in the power of the General of 
the Army, depends on each particular state, much more than 
on Congress," || 

"The United States have the same right, and can . . . reg- 
ulate their foreign trade on the same principle ; but it is a mis- 
fortune, that Congress have not yet been authorized for that 
purpose by all the States . . . It is of great importance and 
the happiness of the United States depends upon it that Con- 
gress should be vested with all the powers necessary to pre- 
serve the Union, to manage the general concerns of it, and 
secure and promote its common interest. . . . This matter, 

* Jefferson's "Anas." 
• f Madison, Preface to Debates in Federal Convention. 
$ Ibid. 
§ Ibid. 

|| Chastellux, "Travels in United States in 1780-82," Vol. I, p. 304; L. 
1787. 



APPENDIX ii 239 

gentlemen, merits your attention; and if you think that Con- 
gress should be vested with ample power," etc.* 



APPENDIX 11A 

{Page 236) 

The Duke of Dorset replied, March 26, 1785, to the Ameri- 
can Commissioners, when they informed him that they were 
ready to make a treaty of commerce with his government : 

"I have been instructed to learn from you, gentlemen, what 
is the real nature of the powers with which you are invested; 
whether you are merely commissioned by Congress, or have 
received separate powers from the separate States. The ap- 
parent determination of the respective States to regulate their 
own separate interests renders it absolutely necessary, towards 
forming a permanent system of commerce, that my Court 
should be informed how far the commissioners can be duly 
authorized to enter into any engagements with Great Britain, 
which it may not be in the power of any one of the States 
to render totally fruitless and ineffectual. ,, 

"The oppressed and degraded state of commerce previous 
to the adoption of the constitution can scarcely be forgotten. 
It was regulated by foreign nations with a single view to their 
own interests; and our disunited efforts to counteract their 
restrictions were rendered impotent by want of combination. 
Congress, indeed, possessed the power of making treaties; 
but the inability of the federal government to enforce them 
had become so apparent as to render that power in a great 
degree useless." f 

* Address of Govr. Bowdoin of Massachusetts to the General Court of 
Massachusetts, 1785 ; Robert C. Winthrop, Address before the Maine His- 
torical Society, September 5, 1849, p. 39. 

t Judge Marshall, in Brown et al. vs. State of Maryland. 



1—16 



240 SECESSION AND CONSTITUTIONAL LIBERTY 

APPENDIX 12 

{Page 39) 

"The delegates of Virginia laid before Congress certain 
powers and instructions to them given by the general assembly 
of their state, which were read, and are as follows: . . . 

"Resolved, That our delegates in Congress be instructed to 
propose to Congress that they recommend to each of the states 
named as parties in the Articles of Confederation, heretofore 
laid before and ratified by this Assembly, that they authorize 
their delegates in Congress to ratify the said articles, together 
with the delegates of so many other of the said states as shall 
be willing, so that the same shall be forever binding on the 
states so ratifying, allowing, nevertheless, to the said states so 
declining, either a given or indefinite time, as to Congress shall 
seem best, for acceding to the said Confederation, and making 
themselves thereby members of the union," etc.* 

"Resolutions preparatory to the formation of the Consti- 
tution Recommended September 17, 1787. 

I. Resolved, that the Articles of Confederation ought to be 
so corrected and enlarged, as to accomplish the objects pro- 
posed by their institution, namely, common Defence, Security 
of Liberty and general welfare." The term "common de- 
fence" implying various communities; one does not speak of 
the "common defence" of a country. 

"State of New Hampshire. In House of Representatives, 
March 4, 1778. 

"The house took into consideration the 13 articles of con- 
federation . . . between the thirteen United States of Amer- 
ica, as agreed to by the honourable Congress of the said states, 
and came to the following resolution thereon, viz., 

"Resolved, That we do agree to said articles of confedera- 
tion . . . and do, for ourselves and constituents, engage that 
the same shall be inviolably observed by this state; and the 
delegates of this state for the time being, at the Congress 

* Journals of Congress, May 20, 1779. 



APPENDIX 12 241 

aforesaid, are hereby empowered and instructed to ratify the 
same in behalf of this state." * 

"Massachusetts Bay. Council Chamber, Boston, March 10, 
1778. 
"Gentlemen, The general court of the state of Massachu- 
setts Bay, having . . . considered the articles of confedera- 
tion . . . between the United States of America ... do ap- 
prove of them ... as well calculated to secure the freedom, 
sovereignty and independence of the United States . . . We 
therefore ... do in the name and behalf of the good people 
of this state, instruct you, their delegates ... to subscribe 
said articles of Confederation." f 

Could it be the "sovereignty and independence of the United 
States" as a unit which Massachusetts desired to secure when 
she [one of them] in terms and action thus operated in her 
own several sovereignty? 

"This assembly having taken into consideration the Articles 
of Confederation . . . between the states of N. Hampshire, 
Massachusetts-Bay [others named] . . . and considering also 
the pressing necessity of completing the union as a meas- 
ure essential to the preservation of the independence and 
safety of the said states do vote . . . that . . . the delegates 
to represent this state in Congress . . . are hereby author- 
ized ... on the part and in behalf of this state to accede to 
. . . the said articles of confederation." % 

"Be it known that Henry Ward Esq., who hath . . . certi- 
fied that the annexed copy, purporting an act of the general 
assembly of the state aforesaid, empowering the delegates of 
the said states in Congress to accede to . . . the articles of 
Confederation." § 

". . . Know ye, that we the said representatives having 
taken into . . . consideration . . . the articles of confedera- 
tion between the states of N. Hampshire [others named] . . . 

* Journals of Congress, June 27, 1778. 

f Journals of Congress, June 27, 1778. 

t Ibid. 

§ Rhode Island's ratification, Journal of Congress, June 27, 1778. 



242 SECESSION AND CONSTITUTIONAL LIBERTY 

do by this present instrument . . . accede to, ratify, confirm 
and agree to the said articles . . ." * 

"The two houses of the general assembly have taken into 
consideration the confederacy proposed to the United States 
by the continental Congress, and have unanimously acceded 
thereto." f 

". . . yet, under the full conviction of the present necessity 
of acceding to the confederacy proposed," etc. J 

"Under the . . . conviction of the present necessity of ac- 
ceding to the confederacy proposed ... Be it enacted . . . 
that the Hon. John Dickinson . . . be . . . authorized . . . 
on behalf of this state to subscribe and ratify the said articles 
of confederation . . . between the several states afore- 
said ..." § 
"At a general Assembly ... of the state of Connecticut . . . 

"It appearing to this assembly to be . . . necessary for the 
preservation . . . independence and sovereignty of the United 
States . . . that the articles of confederation ... be ac- 
ceded to . . . and whereas all of the said states except Mary- 
land have . . . confirmed said articles of confederation . . . 
and whereas the confederation of thirteen states may not be 
considered as obligatory on twelve states only : 

"Resolved, That the delegates of this state in Congress be 
directed . . . to . . . ratify . . . said articles of confedera- 
tion . . . with the states of New Hampshire [others named] 
". . . always provided that the state of Maryland be not 
thereby excluded from acceding to the said Confederation at 
any time hereafter," etc. || 

February 12, 1781. ". . . The delegates for Maryland laid 
before Congress ... an act of the legislature of the state, 
which was read as follows : 

" 'An act to empower the delegates of this state in Congress, 
to . . . ratify the articles of confederation. 

* Ratification of Pennsylvania, Journals of Congress, June 27, 1778. 
f Ratification of North Carolina, Journals of Congress, June 27, 1778. 
% Ratification of New Jersey, Journals of Congress, November 25, 1779. 
§ Ratification of Delaware, Journals of Congress, February 16, 1779. 
|| Journals of Congress, May 21, 1779. 



APPENDIX 13 243 

" 'Whereas, it hath been said that the common enemy is 
encouraged by this state not acceding to the confederation to 
hope that the union of the sister states may be dissolved . . . 
to convince all the world of our unalterable resolution to sup- 
port the independence of the United States . . . and to de- 
stroy forever any . . . hope in our enemies of this state be- 
ing again united to Great Britain . . ." * 
March 1, 1781. ". . . act of . . . New York ... in the 
words following: 'Whereas nothing . . . can more effectu- 
ally contribute to the . . . safety of the United States of 
America than a federal alliance," etc.f 



APPENDIX 13 

(Page 40) 

"Those intelligent minds, in which patriotism was com- 
bined with practical good sense, were by no means unapprised 
of the dangers to be apprehended from a system (the Con- 
federacy) in which the national character was not even sought 
to be preserved ; and by which the American confederacy be- 
came substantially an alliance of independent nations, whose 
several ambassadors assembled in a general congress for the 
purpose of recommending to their respective sovereigns that 
general plan of operations, which had been there concerted, 
and which each was at perfect liberty to pursue or to neg- 
lect." % 

Mr. Marshall used the same phrase in his charge in Gibbons 
vs. Ogden: 

"As preliminary to the very able discussions of the con- 
stitution which we have heard from the bar, and as having 
some influence on its construction, reference has been made 
to the political situation of these states anterior to its forma- 
tion. It has been said, that they were sovereign, were com- 

* Journals of Congress, 
f Journals of Congress. 
% Marshall, "Life of Washington," Vol. IV, p. 263. 



244 SECESSION AND CONSTITUTIONAL LIBERTY 

pletely independent, and were connected with each other only 
by a league. This is true. But when these allied sovereigns 
converted their league into a government, when they converted 
their congress of ambassadors, deputed to deliberate on their 
common concerns, and to recommend measures of general 
utility," etc. 

A similar expression was used by Mr. Gouverneur Morris 
in the Federal Convention, arguing against State equality in 
the Senate, as reported in Yates's Minutes : 

"A government by compact is no government at all. You 
may as well go back to your congressional federal government, 
where in the character of ambassadors they may form treaties 
for each state." 

Also by the State of Connecticut : 

"It was the force of external circumstances only that gave 
to the recommendations of the old congress the authority of 
laws. When the outward pressure was removed, the Union 
was practically dissolved, and anarchy ensued. Without the 
Judicial department, the Congress of the United States would 
now be but an assemblage of ambassadors whose efficiency 
would begin and end in advisory consultations." * 

The idea persisted, even after the Constitution, among gen- 
tlemen who had been active in framing and advocating it ; e.g. : 

"The Senators represent the Sovereignty of the States . . . 
They are in the quality of ambassadors of the States." f 

APPENDIX 14 

{Page 43) 

In view of later history, it is perhaps worth noting that the 

New England States, like the statues at the funeral of Julia, 

were conspicuous by their absence at this conference. 

* Resolutions of Connecticut, May, 1831, on the Georgia Resolutions, 
t Fisher Ames, in Massachusetts Ratifying Convention. Elliot, Vol. II, 
P. 45- 



APPENDIX 15 245 

"Apropos ; what prevented the Eastern States from Attend- 
ing the September meeting at Annapolis ?" * 

According to Jefferson, the reason was as follows: 
"This fact throws a blaze of light on the conduct of several 
members from New York and the eastern States in the con- 
vention of Annapolis, and the grand convention. At that of 
Annapolis, several eastern members most vehemently opposed 
Madison's proposition for a more general convention. . . . 
They wished things to get more and more into confusion to 
justify the violent measures they proposed. The idea of estab- 
lishing a government by reasoning and agreement, they pub- 
licly ridiculed as an Utopian project." f 

APPENDIX 15 

(Page 44) 

"Aside from the ordinary methods of parliamentary pro- 
cedure, two things were agreed upon that are essential in un- 
derstanding the working of the convention. In the first place, 
the whole organization of the convention was on the basis of 
state representation : each state having one vote, seven states 
making a quorum, and a majority of states present being com- 
petent to decide all questions, though the deputies of a state 
by simply requesting it might postpone the vote upon any ques- 
tion until the following day. This matter of state represen- 
tation had been the subject of informal discussion during the 
days that elapsed while the delegates present were waiting for 
a quorum. The Pennsylvania delegates and Gouverneur Mor- 
ris in particular urged 'that the large States should unite in 
firmly refusing to the small States an equal vote, as unreason- 
able, and as enabling the small States to negative every good 
system of Government.' The Virginia delegates, however, 
succeeded in stifling the project for fear that it 'might beget 
fatal altercations between the large and small States.' " % 

* Washington to Henry Knox, December 26, 1786.. 
t"Anas," January 5, 1798; N. Y., 1903. 

% Max Farrand, "The Framing of the Constitution," p. 57 ; New Haven, 
1913. 



246 SECESSION AND CONSTITUTIONAL LIBERTY 

The Commissioners, who met at Annapolis in "1786, con- 
clude their Report, advising another meeting with greater 
power and fuller representation, in these words, viz. : 

"Though your Commissioners could not with propriety ad- 
dress these Observations and Sentiments to any but the States 
they have the honor to Represent, they have nevertheless con- 
cluded from motives of respect, to transmit Copies of this 
Report, to the United States in Congress Assembled, and to 
the Executives of the other States." 



APPENDIX 16 
(Page 47) 

"How long before the business of Convention will be fin- 
ished is very uncertain . . . Believe me, Sir, it is no small 
task to bring to a conclusion the great objects of a United 
Government viewed in different points by thirteen Independ- 
ent Sovereignties . . ." * 

"Much time has been employed in drawing the outlines of 
the Subjects of their Deliberations in which as much unanim- 
ity has prevailed as could be well expected from so many Sen- 
timents arising in twelve Independent Sovereign Bodies; 
Rhode Island not having deigned to Keep company with her 
Sister States on this Occasion." f 

"A very large Field presents to our view without a single 
Straight or eligible Road that has been trodden by the feet of 
Nations. An Union of Sovereign States, preserving their 
Civil Liberties and connected together by such Tyes as to Pre- 
serve permanent & effective Governments is a system not de- 
scribed, it is a Circumstance that has not occurred in the His- 
tory of Men ...."$ 

"Your Excellency is not now to be informed that I am not 

* Alexander Martin to Govr. Caswell, July 27, 1787. 
t Alexander Martin (delegate of N. C.) to Govr. Caswell, August 20, 
1787. 

% North Carolina delegates to Govr. Caswell, June 14, 1787. 



APPENDIX 16 247 

at liberty to explain the particulars of the mode of government 
that the Convention have in contemplation, but I will venture 
to assure you that it will be such a form of government as I 
believe will be readily adopted by the several states." * 

"The powers of the General Government are so defined as 
not to destroy the Sovereignty of the Individual States." f 

"It appears to me, then, little short of a miracle, that the 
delegates from so many different States (which States you 
know are also different from each other), in their manners, 
circumstances, and prejudices, should unite in forming a sys- 
tem of national government," etc. $ 

"And, in the important revolution just accomplished in the 
system of their united government, the tranquil deliberations 
and voluntary consent of so many distinct communities, from 
which the event has resulted," etc. § 

"It is a fact declared by the general convention, and uni- 
versally understood, that the constitution of the United States 
was the result of a spirit of amity and mutual concession." || 

"After four months' session the house broke up, the repre- 
sented states, eleven and a half, having unanimously agreed 
to the act [the proposed Constitution] handed to you." fl 

"Met in Convention when the Constitution received the 
unanimous assent of 11 States and Col. Hamilton for New 
York." ** 

Mr. Pelatiah Webster, to whom is sometimes credited the 
first idea of the Constitution, says: 

"Indeed I begin to have hopes of Brutus . . . for I ob- 
serve . . . the constitution he defines and adopts is the very 
same as that which the Federal Convention have proposed to 
us, viz. : 'That the Thirteen States should continue thirteen 
confederated republics, under the direction and control of a 

* Hugh Williamson (delegate from N. C.) to Govr. Caswell, August 
20, 1787. 

f Pierce Butler (delegate of S. C.) to Weedon Butler, October 8, 1787. 

j Washington to Lafayette, February 7, 1788. 

§ Washington's Inaugural Speech, April 30, 1789. 

|| Washington, Message to House of Representatives, March 30, 1796. 

if Washington to Jefferson, October 11, 1787. 

** Washington's "Diary," September 17, 1787. 



248 SECESSION AND CONSTITUTIONAL LIBERTY 

supreme federal head, for certain defined national purposes 
only. . . . His first question is, Whether a confederated gov- 
ernment is best for the United States? 

"I answer if Brutus . . . cannot find any benefit resulting 
from the union of the Thirteen States," etc.* 



APPENDIX 17 

{Page 47) 

Delaware had foreseen and provided against attempts to 
derogate from her equality; and the significance of her in- 
structions to her delegates was at once noted. 

"In the eleventh year of the independence of the Delaware 
state. An act appointing Deputies from this State to the Con- 
vention proposed to be held in the City of Philadelphia, for 
the purpose of revising the Federal Constitution ... So al- 
ways and provided, that such alterations ... do not extend 
to that part of the 5th article of the confederation of the 
said states, . . . which declares that 'In determining questions 
in the United States in Congress assembled, each state shall 
have one vote/ " f 

"The state of Delaware has tied up the hands of her dep- 
uties by an express direction to retain the principle in the pres- 
ent confederation of each state having the same vote," % etc. 

"The representatives from the different states having met 
on the 25th of May, 1787, at the state-house in Philadelphia, 
General Washington having been unanimously placed in the 
chair, and Major Jackson, by the votes of all the states, except 
Pennsylvania, appointed secretary; the convention proceeded 
to read the powers given by the different states to their dele- 
gates, among which were particularly noticed the power of 

• * Remarks in Vindication of the Constitution proposed by the late Fed- 
eral Convention," Phila., 1787. 

t Credentials of the Delegates of Delaware to the Federal Convention, 
February 3, 1787 ; Elliot, Vol. I. 

% Geo. Mason, Sr., to Geo. Mason, Jr., May 27, 1787. 



APPENDIX 18 249 

Delaware, which restrained its delegates from assenting to an 
abolition of the fifth article of the confederation, by which it 
is declared 'that each state shall have one vote.' " * 

On the question of the Confederation, Delaware had taken 
the same stand, thereby bringing into full debate the same 
question. 

"Dr. Franklin thought, that the votes should be so propor- 
tioned in all cases. He took notice that the Delaware counties 
had bound up their delegates to disagree to this article. He 
thought it a very extraordinary language to be held by any 
State, that they would not confederate with us, unless we 
would let them dispose of our money." f 



APPENDIX 18 

(Page 50) 

"After all, in discussing & expounding the character & 
import of a Constn., let candor decide whether it be not more 
reasonable & just to interpret the name or title by the facts 
on the face of it, than to make the title torture the facts by a 
bed of Procrustes into a fitness to the title." % 



APPENDIX 19 

(Page 54) 

"Reflect for a moment on the situation of the Eastern 
States . . . They can enjoy their independence without our 
assistance. If our government is to be founded on equal com- 
pact, what inducement can they possibly have to be united to 
us without having," etc., etc. § 

* Yates's "Secret Proceedings." 

t Jefferson's "Autobiography," "Works," Vol. I, p. 31. 
% Madison, Letter to John Tyler. 

§ Charles C. Pinckney, Speech of January, 1788. South Carolina Rat- 
ifying Convention. 



250 SECESSION AND CONSTITUTIONAL LIBERTY 

"I will not . . . trace the ills we suffer up to their source 
. . . For . . . those who inculcate principles inconsistent 
with all social union, charge the opponents of their disorganiz- 
ing principles with an intention to separate the Eastern from 
the Southern States. That the course pursued . . . will, if 
persisted in, occasion that separation there can be but little 
doubt, but he who spent the flower of youth and the strength 
of manhood in labouring to promote and confirm the Ameri- 
can union, can never, but in the last necessity, recommend its 
dissolution . . . Federalists are too proud of the name they 
bear, to view unmoved, the danger to which our federal com- 
pact is exposed . . . But although we deprecate the impend- 
ing separation, yet we conceive that, under existing circum- 
stances, prudent men should prepare for events, and fortify 
their hearts for such struggles as the cause of justice," etc.* 

This is here introduced with special reference to the term, 
"federal compact." But the plain and undoubted implication 
of the propriety of a dissolution of the union under certain 
conditions (the same doctrine was yet more plainly stated by 
Mr. Morris, v. Appendix 32B) is also particularly noteworthy, 
from the mouth of its propounder; Mr. Morris having been 
one of the strongest advocates of a strong and centralized gov- 
ernment among the makers of the Constitution. He had used 
the same words, and in a way to define their meaning, in the 
Federal Convention : 

"It had been said that it was high time to speak out. As 
one member, he would candidly do so. He came here to 
form a compact for the good of America. He was ready to 
do so with all the states. He hoped and believed that all would 
enter into such a compact. If they would not, he was ready 
to join with any states that would. But as the compact was 
to be voluntary, it is in vain for the Eastern States to insist 
on what the Southern States will never agree to. It is equally 
vain for the latter to require," etc. f 

* Gouverneur Morris, Oration before the New York Washington 
Benevolent Society, July 5, 1813. 

t Gouverneur Morris, July, 1787; Elliot's "Debates," Vol. V, p. 303. 



APPENDIX 19 251 

"And so in his letter to Lewis Sturges in 18 14, he [Gouver- 
neur Morris] says : The Constitution was a compact, not 
between solitary individuals, but between political societies; 
the people, not of America, but of the United States, each en- 
joying sovereign power, and of course equal rights.' " * 

Mr. Morris apparently considered the compromise which 
gave the States equality in the Senate a seal of compact ; argu- 
ing against it, he said : 

"A government by compact is no government at all. You 
may as well go back to your congressional federal government, 
where in the character of ambassadors they may form trea- 
ties for each state." f 

Mr. Wilson's theory, however, has all the vitality of parti- 
san convenience. Mr. Webster 

"did not agree that in strictness of language the Constitution 
was a compact at all" ; "I maintain that the Constitution of 
the United States is not a league, confederation, or compact 
between the people of the several States in their sovereign 
capacities," answering Mr. Clay. 

In his lauded reply to Mr. Hayne, he asserted : 

"He has not shown, it cannot be shown, that the Consti- 
tution is a compact between State governments. It does not 
even say that it is established by the people of the several 
States; but it pronounces that it is established by the people 
of the United States in the aggregate." 

"The Defender of the Constitution" probably was aware 
that his native State, New Hampshire, and his adopted one, 
Massachusetts, thanked God officially for the "opportunity 
of entering into a compact." The ratification of the former 
runs: 

"In Convention of the Delegates of the People of the State 
of New Hampshire, June 21st, 1788: — 

* John Randolph Tucker, "The Relations of the United States to Each 
Other," p. 66 ; 1877. 
f Yates's "Minutes." 



252 SECESSION AND CONSTITUTIONAL LIBERTY 

"The Convention . . . acknowledging with grateful hearts 
the Goodness of the Supreme Ruler of the Universe in afford- 
ing the People of the United States ... an opportunity, de- 
liberately and peaceably, without fraud or surprise, of enter- 
ing into an explicit and solemn compact with each other . . . 
Do in the name and behalf of the people of the State of New 
Hampshire, assent to and ratify the said Constitution/' etc. 

That of the latter: 

"The Convention . . . acknowledging, with grateful 
hearts, the goodness of the supreme Ruler of the universe in 
affording the people of the United States ... an oppor- 
tunity, deliberately and peaceably, without fraud or surprise, 
of entering into an explicit and solemn compact with each 
other, by assenting to and ratifying a new Constitution, . . . 
do in the name and behalf of the people of the Commonwealth 
of Massachusetts, assent to and ratify the said Constitution 
for the United States of America/' 

Massachusetts was in earlier days rather conspicuously 
given to invoking the term, with its consequences, as the fol- 
lowing extracts show : 

"That the people in the solemn compact which is declared 
to be the supreme law of the land," etc.* 

"Time was, when the United States were preeminently 
blessed, in this regard. For years after the national compact 
was carried into effect, this blessedness was conspicuous to 
every beholder." f 

"The proportion of the political weight of each foreign 
State, composing this union, depends upon the number of the 
States, which have a voice under the compact . . . availing 
themselves of the contrariety of interests . . . which in 
such a confederacy of States necessarily arise," etc.J 

"We spurn the idea that the free, sovereign and independent 

• * Reply to the Virginia Resolutions, Feb. 9, 1799. 
t John Foster, Sermon, p. 13; Cambridge, 181 1. 

t June 16, 1813, on admission of Louisiana. Showing it to be a com- 
pact of the several States, not of the whole people with each other as indi- 
viduals. 



APPENDIX 19 253 

State of Massachusetts is reduced to a mere municipal cor- 
poration, without power to protect its people, and defend them 
from oppression, from whatever quarter it comes . . . 
Whenever the national compact is violated . . . this legis- 
lature is bound to interpose its power," etc.* 

Her delegate in the Convention, and later Senator, Mr. 
Rufus King, speaking in the Senate, said : 

"The compromise on the subject of the Presidential election, 
which has always been binding in honor . . . Hence it has 
happened, from year to year, that attempts have been made 
by certain States, to alter the Constitution in the subject of the 
Presidential election, notwithstanding this election is matter 
of compromise and compact between the States, without which 
no Constitution could have been formed." 

And again : "For this reason, measures which may be em- 
ployed in the several States under regulations and provisions 
of simple and single sovereignties could not be adopted in the 
balanced system of the Constitution — a compact between the 
States." f 

"It will not be contended that by the terms used in the con- 
stitutional compact, the power of the National Government 
is," etc. % 

"If the legislature of a single State might, under such cir- 
cumstances, endeavor to provide for its defence, without in- 
fringing the national compact," etc. § 

"No pretence is urged that any . . . forcible violation of 
the constitutional compact, has ever happened in Massachu- 
setts," etc. || 

"The objection to the Louisiana treaty was founded on the 
just construction of the compact between sovereign States." If 

* General Court of Massachusetts, on the Embargo, February 22, 1814. 

f March 23, 1824. 

t "Proceedings of a Convention of Delegates from the States of Massa- 
chusetts, Connecticut, and Rhode Island, Convened at Hartford, 1814." 
Newburyport, 1815. 

§ Appeal to the Citizens of the U. S. [By H. G. Otis et at.], January 
28, 1829, Henry Adams, "New England Federalism," p. S3 ; B., 1877. 

" Ibid., p. 88. 
Ibid., p. 78. 



254 SECESSION AND CONSTITUTIONAL LIBERTY 

In fact it continued the use of the term, etc., down to the 
time when it [and Mr. Webster] found the consequences 
necessarily to be deduced therefrom unpalatable : e. g. : "Re- 
solved, That the people of Massachusetts, faithful to the com- 
pact between the people of the United States," etc.* 

At that time also, one of its citizens, a contemporary of 
the Constitution, and of sufficient importance to have been 
President of the United States, Mr. John Quincy Adams, in 
his address against the annexation of Texas, said : 

"It would be a violation of our national compact ... so 
unjust . . . as in our opinion not only inevitably to result 
in a dissolution of the Union but fully to justify it." 

Nor was it only by Massachusetts that the term and prin- 
ciple was explicitly recognized. Most, or all, of the original 
(and some of the admitted) States at various times did the 
same. 

"This House considers such declaration as a revolutionary 
measure, destructive of the purest principles of our State and 
National compacts." f 

"Resolved, That ... a system of foreign colonizatioh 
. . . might be adopted that would in due time effect the 
entire emancipation of the slaves in our country without any 
violation of the national compact," etc. X 

In 1820 the Legislature of Ohio, in its Resolution against 
the Bank of the United States, also invokes the "compact," 
using the wording of the Kentucky Resolution. 

"Foreseeing the terrible effects which might ensue from 
differences of opinion on national subjects . . . They [our 
ancestors] declared the compact [viz.: the Constitution] 
amendable," etc. § 

"The further admission of territories into the union with- 

" * On the annexation of Texas, March 15, 1844. 
f Reply of Pennsylvania to Kentucky Resolutions, February 9, 1799. 
% Ohio, on Emancipation, etc*, January 17, 1824. 

§ Address of the minority of the House of Delegates of Virginia on 
the Resolution, 1798. 



APPENDIX 19 255 

out restriction of slavery, would, in their opinion, essentially 
impair the right of this and other existing states to equal repre- 
sentation in Congress (a right at the foundation of the politi- 
cal compact )." * 

"If, odious as slavery is, it was proposed to hasten its ex- 
tinction by means injurious to the states upon which it was 
unhappily entailed, Pennsylvania would be among the first to 
insist upon a sacred observance of the Constitutional com- 
pact," etc. f 

"The people of the United States by the adoption of the 
federal constitution established a general government for 
special purposes, reserving to themselves respectively, the 
rights and authorities not delegated in that instrument. To 
the compact thereby erected, each state acceded in its character 
as a state, and is a party. The act of union thus entered into 
being to all intents and purposes a treaty between sovereign 
states," etc. X 

"The Constitution of the United States is a compact, a fun- 
damental treaty." § 

"Whereas, The Constitution of the United States is a com- 
pact between the several states and forms the basis of our 
Federal Union." || 

"Thus has the question whether the Federal Courts are the 
sole expositors of the Constitution of the United States in the 
last resort, or whether the States 'as in all other cases of com- 
pact' . . . been decided against the pretensions of the fed- 
eral judges," etc. fl 

It is not thought necessary, in this connection, to give the 
various similar declarations of the Southern States. But it 
will be seen that a large proportion of the original States ex- 
plicitly affirmed the fact, which "The Defender of the Consti- 
tution" asserted could not be shown, in such words as to forbid 
any assumption that the "compact" denoted was the "social 

* Resolution of New Jersey, January 24, 1820. 
t Resolution of Pennsylvania, December 22, 1819. 
% Resolutions of Pennsylvania against the Bank, January 11, 181 1. 
§ Resolves of Iowa, on the Compromise; 185 1. 
|| New Jersey, on the Compromise, January 30, 1852. 
If Report of Ohio relative to the Bank, January 3, 1821. 
1—17 



256 SECESSION AND CONSTITUTIONAL LIBERTY 

compact/ ' or anything but a compact between States, — not 
state governments. 

Later on, in his second speech at Capon Springs, June 28, 
185 1, Mr. Webster found himself compelled to make use of 
the same term to justify the contention he then supported. 

"If large portions of public bodies, against their duty and 
their oaths, will persist in refusing to execute the Constitution, 
and do in fact prevent such execution, no remedy seems to lie 
by any application to the Supreme Court. The case now be- 
fore the country clearly exemplifies my meaning. Suppose the 
North to have decided majorities in Congress, and suppose 
these majorities persist in refusing to pass laws for carrying 
into effect the clause of the Constitution, which declares that 
fugitive slaves shall be restored, it would be evident that no 
judicial process could compel them to do their duty, and what 
remedy would the South have? 

"How absurd it is to suppose that when different parties 
enter into a compact for certain purposes, either can disregard 
any one provision, and expect nevertheless the other to observe 
the rest ! . . . 

"I have not hesitated to say and I repeat, that if the North- 
ern States refuse wilfully and deliberately to carry into effect 
that part of the Constitution which respects the restoration 
of fugitive slaves, the South would no longer be bound to 
observe the compact. A bargain broken on one side is a bar- 
gain broken on all sides." 

Mr. Webster had, in fact, himself favoured the term at an 
even earlier date, as Mr. Calhoun pointed out with gentle 
sarcasm : 

"I trust, however, that the Senator will excuse me, when he 
comes to hear my apology. In matters of criticism, authority 
is of the highest importance, and I have an authority of so 
high a character, in this case, for using the expression which 
he considers so obscure and so unconstitutional, as will justify 
me even in his eyes. It is no less than the authority of the 
Senator himself — given on a solemn occasion (the discussion 



APPENDIX 19 257 

on Mr. Foote's resolution), and doubtless with great delibera- 
tion, after having duly weighed the force of the expression 
. . . 'Nevertheless, I do not complain, nor would I coun- 
tenance any movement to alter this arrangement of representa- 
tion. It is the original bargain — the compact — let it stand; 
let the advantage of it be fully enjoyed. The Union itself is 
too full of benefits to be hazarded in propositions for changing 
its original basis. I go for the constitution as it is, and for the 
Union as it is. But I am resolved not to submit in silence to 
accusations, either against myself individually, or against the 
north, wholly unfounded and unjust — accusations which im- 
pute to us a disposition to evade the constitutional com- 
pact, and to extend the power of the Government over the 
internal laws and domestic condition of the States.' 

"It will be seen, by this extract, that the Senator not only 
used the phrase 'constitutional compact,' which he now so 
much condemns, but, what is still more important, he calls the 
constitution itself a compact — a bargain; which contains im- 
portant admissions, having a direct and powerful bearing on 
the main issue involved in the discussion, as will appear in the 
sequel. . . . 

"On this point there is a very important part of the consti- 
tution entirely and strangely overlooked by the Senator in this 
debate, as it is expressed in the first resolution, which fur- 
nishes conclusive evidence not only that the constitution is a 
compact, but a subsisting compact, binding between the States. 
I allude to the seventh article, which provides that 'the ratifi- 
cation of the conventions of nine States shall be sufficient for 
the establishment of this constitution between the States so 
ratifying the same.' Yes, 'between the States/ These little 
word9 mean a volume — compacts, not laws, bind between 
States; and it here binds, not as between individuals, but be- 
tween the States: the States ratifying; implying, as strong as 
language can make it, that the constitution is what I have as- 
serted it to be — a compact, ratified by the States, and a sub- 
sisting compact, binding the States ratifying it." 19A * 

* Calhoun's Speech on State Rights, February 26, 1833 ; "Works," Vol. 
VI, pp. 267-8, 283. Vide, also, Appendix 19A for extract from "Rocking- 
ham Memorial," written by Mr. Webster. 



258 SECESSION AND CONSTITUTIONAL LIBERTY 

In fact, the word, and the idea, was used at the time not 
only in speaking of the Constitution but by contracting parties 
to the deed by which they entered therein; it was the term in 
the mouths of the members of the Convention as well as 
others : e. g., "The object of this meeting is very important to 
my mind — unless a system of government is adopted by Com- 
pact, Force I expect will plant the Standard; for such an 
anarchy as now exists cannot last long." * 

"The real parties to the constl. compact of the U. S. are the 
States — that is, the people thereof respectively in their sov- 
ereign character, and they alone/' f 

"Do you enter into a compact first, and afterwards settle 
the terms of the government? It is admitted by every one 
that this is a compact." $ 

Again : 

"Virginia ... is called upoji to accede to another com- 
pact which supersedes the present one." § 

"Is it not necessary to speak of those things before you go 
into a compact? ... In a compact there are two parties — 
one accepting and another proposing. As a party, we propose 
that we shall secure these three things ; and before we have the 
assent of the other contracting party, we go into the compact 
and leave these things at their mercy." || 

"But a few years ago we were equal in votes and influence, 
though inferior in size and population, to the largest States. 
We consented to give up a certain portion of that influence for 
the general good, expressly retaining the other portion for 
our own protection and security. This instrument, the Con- 
stitution ... is the new compact which that temper pro- 
duced. It is the great plan of compromise between the great 
and small states," etc. ff 

"After serious investigation, it was solemnly determined 

* Elbridge Gerry (of Massachusetts) to James Monroe, June n, 1787. 
t Madison, Hunt's Edition of "Madison's Writings," Vol. IX, p. 352. 
• i Patrick Henry, in the Virginia Ratifying Convention, arguing against 
ratification prior to amendment. 

§ Henry, in same, Elliot, Vol. Ill, p. 445- 

|| Ibid., p. 589. 

11 Jonathan Dayton, of New Jersey, in U. S. Senate, December 2, 1803. 



APPENDIX 19 259 

. . . if . . . that offensive feature . . . could not be 
expunged ... we would secede from the convention, and, 
returning to our constituents inform them that no compact 
could be formed with the large states but one which would 
sacrifice our sovereignty and independence." * 

"The Federal Constitution establishes a Government of the 
last description . . . the Government, and the powers which 
the Congress can administer, are the mere result of a Com- 
pact." f 

"This is the only Government founded in real Compact." $ 

"Are we, then, to stand at arms? . . . No, that must be 
the last resource, not to be thought of until much longer and 
greater sufferings. If every infraction of a compact of so 
many parties is to be resisted at once as a dissolution of it," 
etc. § 

"Whilst the General Assembly thus declares the rights re- 
tained by the States, rights which they have never yielded, and 
which this State will never voluntarily yield, they do not mean 
to raise the banner of disaffection, or of separation from their 
sister States, co-parties with themselves to this compact. They 
know and value too highly the blessings of their Union as to 
foreign nations and questions arising among themselves, to 
consider every infraction as to be met by actual resistance. 
They respect too affectionately the opinions of those possess- 
ing the same rights under the same instrument, to make every 
difference of construction a ground of immediate rupture. 
They would, indeed, consider such a rupture as among the 
greatest calamities which could befall them ; but not the great- 
est. There is yet one greater, submission to a government of 
unlimited powers. It is only when the hope of avoiding this 
shall become absolutely desperate, that further forbearance 
could not be indulged. Should a majority of the co-parties, 
therefore, contrary to the expectation and hope of this as- 

* Jonathan Dayton, as narrated by William Steele, to Jonathan D. 
Steele, September, 1825. 

t Parsons in Massachusetts Ratifying Convention. 

i Pendleton, in Virginia Ratifying Convention. Elliot, Vol. Ill, p. 37. 

§ Jefferson to Wm. B. Giles, Dec. 26, 1825; Henry Adams, "New Eng- 
land Federalism," p. 78; B., 1877. 



2<5o SECESSION AND CONSTITUTIONAL LIBERTY 

sembly, prefer, at this time, acquiescence in these assumptions 
of power by the federal member of the government, we will be 
patient and suffer much, under the confidence that time, ere it 
be too late, will prove to them also the bitter consequences in 
which that usurpation will involve us all. In the meanwhile, 
we will breast with them, rather than separate from them, 
every misfortune, save that only of living under a government 
of unlimited powers. We owe every other sacrifice to our- 
selves, to our federal brethren, and to the world at large, to 
pursue with temper and perseverance the great experiment 
which shall prove that man is capable of living in society, 
governing itself by laws self-imposed, and securing to its 
members the enjoyment of life, liberty, property, and peace; 
and further to show, that even when the government of its 
choice shall manifest a tendency to degeneracy, we are not 
at once to despair but that the will and the watchfulness of its 
sounder parts will reform its aberrations, recall it to original 
and legitimate principles, and restrain it within the rightful 
limits of self-government. And these are the objects of this 
Declaration and Protest." * 

"But the federal branch has assumed in some cases, and 
claimed in others, a right of enlarging its own powers by con- 
structions, inferences, and indefinite deductions from those 
directly given, which this assembly does declare to be usurpa- 
tions of the powers retained to the independent branches, mere 
interpolations into the compact, and direct infractions of it. 

"They claim, for example, and have commenced the exer- 
cise of a right to construct roads, open canals, and effect other 
internal improvements within the territories and jurisdictions 
exclusively belonging to the several States, which this assem- 
bly does declare has not been given to that branch by the con- 
stitutional compact, but remains to each State among its do- 
mestic and unalienated powers,, exercisable within itself and 
by its domestic authorities alone." f 

* Solemn Declaration and Protest of the Cdmmonwealth of Virginia, 
on the principles of the Constitution of the United States of America, and 
on the violations of them, Jefferson's "Works." N. Y., 1853. Vol. IX, 
pp. 498-499. 

t Ibid., Vol. IX, p. 467. 



APPENDIX 19A . 261 

"We, the General Assembly of Virginia, on behalf, and in 
the name of the people thereof, do declare as follows : 

"The States in North America which confederated to estab- 
lish their independence of the government of Great Britain, 
of which Virginia was one, became, on that acquisition, free 
and independent States, and as such, authorized to constitute 
governments, each for itself, in such form as it thought best. 

"They entered into a compact (which is called the Constitu- 
tion of the United States of America), by which they agreed 
to unite in a single government as to their relations with each 
other, and with foreign nations, and as to certain other articles 
particularly specified. They retained at the same time, each to 
itself, the other rights of independent government, compre- 
hending mainly their domestic interests." * 

"And with no body of men is this restraint more wanting 
than with the judges of what is commonly called our general 
government, but what I call our foreign department. They 
are practising on the constitution by inferences, analogies, and 
sophisms, as they would on an ordinary law. They do not 
seem aware that it is not even a constitution, formed by a 
single authority, and subject to a single superintendence and 
control ; but that it is a compact of many independent powers, 
every single one of which claims an equal right to understand 
it, and to require its observance. However strong the cord 
of compact may be, there is a point of tension at which it will 
break, f 

APPENDIX 19A 

(Page 257) 

Mr. Webster then also took exception to the word "ac- 
cede" in reference to the States' adoption of the Constitution. 

"The first Resolution declares that the people of the several 
States 'acceded' to the Constitution. . . . This word 'ac- 

* Solemn Declaration and Protest of the Commonwealth of Virginia, 
on the principles of the Constitution of the United States of America, and 
on the violations of them, Jefferson's "Works." N. Y., 1853. Vol. IX, p. 496. 

t Jefferson's Letter to Edward Livingston, March 25, 1825, "Works," 
Vol. VII, pp. 403-404- 



262 SECESSION AND CONSTITUTIONAL LIBERTY 

cede' not found either in the Constitution itself, or in the rati- 
fication of it by any one of the States, has been chosen for use 
here, doubtless, not without a well considered purpose. The 
natural converse of accession is secession; and, therefore, 
when it is stated that the people of the States acceded to the 
Union, it may more plausibly be argued that they may secede 
from it. Jf, in adopting the Constitution nothing was done 
but acceding to a Compact, nothing would seem necessary, to 
break it up, but to secede from the same Compact/' * 

Mr. Calhoun says: 

"But, strong as his objection is to the word 'constitutional/ 
it is still stronger to the word 'accede,' which, he thinks, has 
been introduced into the resolution with some deep design, as 
I suppose, to entrap the Senate into an admission of the doc- 
trine of State Rights. Here, again, I must shelter myself 
under authority. But I suspect the Senator, by a sort of in- 
stinct (for our instincts often strangely run before our knowl- 
edge), had a prescience, which would account for his aversion 
for the word, that this authority was no less than Thomas 
Jefferson himself, the great apostle of the doctrine of State 
Rights. The word was borrowed from him. It was taken 
from the Kentucky Resolution, as well as the substance of the 
resolution itself. But I trust I may neutralize whatever aver- 
sion the authorship of this word may have excited in the mind 
of the Senator, by the introduction of another authority — that 
of Washington himself, who, in his speech to Congress, speak- 
ing of the admission of North Carolina into the Union, used 
this very term, which was repeated by the Senate in their 
reply." f 

Washington, indeed, used it more than once, both officially 
and personally. 

"The recent accession of the important State of North 
Carolina," etc. % 

* Webster, in reply to Calhoun. 

f Calhoun's Speech in reply to Mr. Webster, on State Rights, February 
26, 1833, "Works," Vol. II, p. 268. 

I Speech to both Houses of Congress, January 8, 1790. 



APPENDIX 19A 263 

The answer of the Senate runs : 

'To the President . . . We the Senate of the United 
States, return . . . The accession of the State of North 
Carolina . . . gives us much pleasure. . . . " * 

"The constant report is, that North Carolina will soon ac- 
cede to the new Union. " f 

"Let the opponents of the proposed Constitution ... be 
asked . . . what line of conduct they would advise . . . 
if nine other States . . . should accede to the Constitu- 
tion." i 

"But of all arguments . . . the most prevailing one . . . 
will be that nine States at least will have acceded to it." § 

"Their exhilaration was greatly increased ... by the 
arrival of . . . the news that the Convention of New 
Hampshire had, on the 21st instant, acceded to the new Con- 
federacy. . . ."|| 

Madison says: 

"The latter were not only averse to any interference on the 
subject; but solemnly declared that their constituents would 
never accede to a constitution containing such an article," etc.fl 

He had already used the same term in the Federal Conven- 
tion, viz.: 

"For he observed, that the people of the large states would, 
in some way or other, secure to themselves a weight propor- 
tioned to the importance accruing from their superior num- 
bers. If they could not effect it by a proportional representa- 
tion in the government, they would probably accede to no 
government which," etc. ** 

He again made use of it in the Virginia Ratifying Conven- 
tion: "Suppose eight states only should ratify, and Virginia 

* Proceedings of Senate, January, 1790. 

t Washington to Benj. Lincoln, Oct. 26, 1788. 

t Washington to Bushrod Washington, November io, 1787. 

§ Washington to Madison, January 10, 1788. 

|| Washington to C. C. Pinckney, June 28, 1788. 

11 Madison to Robert Walsh, November 2"/, 1819. 

** Elliot, July, 1787, Vol. V, p. 314- 



264 SECESSION AND CONSTITUTIONAL LIBERTY 

should propose certain alterations, as the previous condition 
of her accession. " * 

It was indeed commonly used in that Ratifying Conven- 
tion, e. g. : 

"If it be, sir, is it for us to accede to such a government ?" f 

"Virginia ... is called upon to accede to another com- 
pact which supersedes the present one." % 

"New York is an insurmountable obstacle to it, and North 
Carolina also. They will never accede to it [the Constitu- 
tion] till it be amended." § 

"For according to their mode, the Union would never be 
complete till the thirteen States had acceded to it." || 

"But we are told that we have everything to fear from the 
Northern States, because they will prevent an accession of 
states to the south." fl 

"... Admitting it was proper for the Convention to have 
inserted a bill of rights, it is not proper here to propose it as 
the condition of our accession to the Union," etc.** 

A few years later the word still retained its application; 
e.g.: 

"To the compact thereby erected, each state acceded in its 
character as a state, and is thereby a party." ff 

The use of the word "accession" is indeed not without a 
certain significance in this connection. The word in the first 
case indicates voluntary action by the several States ; secondly, 
it was used to connote the relation of the States to the Con- 
federation. Its identical use in connection with their relation 
to the Constitution, perhaps in some degree indicates that they 

* Elliot, Vol. Ill, p. 618. 

t Henry. 

t Henry, in Virginia Ratifying Convention, Elliot's "Debates," Vol. Ill, 
p. 445. 

§ Henry, in Virginia Ratifying Convention, Elliot, Vol. Ill, p. 594. 

|| Innes, in Virginia Ratifying Convention, Elliot's "Debates," Vol. Ill, 
.p. 636. 

H Nicholas, in Virginia Ratifying Convention. 

** George Nicholas, in Virginia Ratifying Convention, Elliot, Vol. Ill, 
p. 481. 

ft Resolutions of Pennsylvania against the Bank, January 11, 181 1. 



APPENDIX 19A 265 

were thought to enter the one form of government upon the 
same status as they had entered the other. 

"In the article respecting Canada it was moved to strike out 
the word 'entirely' before 'joining' and read 'Canada acceding 
to this confederation and joining in the measures of the United 
States.' 

"Resolved in the affirmative." * 

"Canada acceding to this confederation . . . shall be ad- 
mitted into . . . the union." f 

"Resolved . . . That in case the inhabitants [of the 
New Hampshire grants] . . . shall accede to the Articles 
of Confederation . . . between the States of New Hamp- 
shire [others named] . . . their said delegates shall be 
admitted to sign the same, and thereupon the inhabitants of 
the above described district shall be acknowledged a free, sov- 
ereign and independent state . . . " % 

"This assembly having taken into consideration the Articles 
of Confederation . . . between the states of N. Hampshire, 
Massachusetts-Bay [others named] . . . and considering 
also the pressing necessity of completing the union as a meas- 
ure essential to the preservation of the independence and 
safety of the said states, do vote . . . that . . . the dele- 
gates to represent this state in Congress . . . are hereby 
authorized ... on the part and in behalf of this state to 
accede to . . . the said articles of confederation." § 

"Be it known that Henry Ward Esq., who hath . . . cer- 
tified that the annexed copy, purporting an act of the general 
assembly of the state aforesaid, empowering the delegates of 
the said state in Congress to accede to ■-..." . the articles of 
Confederation." || 

"... Know ye, that we the said representatives having 
taken into . . . consideration . . . the articles of confed- 
eration between the states of N. Hampshire [others named] 

♦Journals of Congress, Nov. 7, 1777. 

t Article 11 of Articles of Confederation. 

i Journals of Congress, March 1, 1782. 

§ Journals of Congress, June 27, 1778. 

|| Rhode Island's ratification, Journals of Congress, June 27, 1778. 



266 SECESSION AND CONSTITUTIONAL LIBERTY 

... do by this present instrument . . . accede to ratify, 
confirm and agree to the said articles . . ."* 

"The two houses of the general assembly have taken into 
consideration the confederacy proposed to the United States 
by the continental Congress, and have unanimously acceded 
thereto." f 

". . . Yet, under the full conviction of the present neces- 
sity of acceding to the confederacy proposed," etc. X 

"Under the . . . conviction of the present necessity of 
acceding to the confederacy proposed . . . Be it enacted 
. . . that the Hon. John Dickinson . . . be . . . au- 
thorized . . .on behalf of this state to subscribe and ratify 
the said articles of confederation . . . between the several 
states aforesaid . . . " § 

"At a general Assembly ... of the state of Connecti- 
cut . . . 

"It appearing to this assembly to be . . . necessary for 
the preservation . . . independence and sovereignty of the 
United States . . . that the articles of confederation . . . 
be acceded to . . . " || 

"... The delegates for Maryland laid before Congress 
... an act of the legislature of that state, which was read 
as follows : 

" 'An act to empower the delegates of this state in Congress, 
to . . . ratify the articles of Confederation. 

" 'Whereas, it hath been said that the common enemy is 
encouraged by this state not acceding to the confedera- 
tion' . . ."If ' 

"Although the pressure of immediate calamities . . . may 
have induced some states to accede to the present confedera- 
tion," etc.** 

* Ratification of Pennsylvania, Journals of Congress, June 27, 1778. 
f Ratification of North Carolina, Journals of Congress, June 27, 1778. 
t Ratification of New Jersey, Journals of Congress, November 25, 1778. 
• § Ratification of Delaware, Journals of Congress, February 16, 1779. 
|| Journals of Congress, May 21, 1779. 
i Journals of Congress, February 12, 1781. 

** Instructions laid before Congress by the Delegates of Maryland, 
Journals of Congress, May 21, 1779. 



APPENDIX 19A 267 

Mr. Franklin even made use of the wickeder word "seces- 
sion." 

"Our strength and our prosperity will depend on our unity ; 
and the secession of even four of the smallest states/' etc.* 

So did Mr. Dayton himself. 

"After serious investigation it was solemnly determined 
. . . if . . . that offensive feature . . . could not be 
expunged ... we would secede from the convention/' etc. 

Mr. Hamilton was guilty of the term, even after the forma- 
tion of the Constitution : 

"The eastern members particularly, who, with Smith from 
South Carolina, were the principal gamblers in these scenes, 
threatened a secession and dissolution. Hamilton was in de- 
spair. As I was going to the President's one day, I met him in 
the street. He walked me backwards and forwards before the 
President's door for half an hour. He painted pathetically 
the temper into which the legislature had been wrought; the 
disgust of those who were called the creditor States ; the dan- 
ger of the secession of their members, and the separation of 
the States." f 

Another assertion of Mr. Webster's may in this connection 
be considered. 

"I understand the honorable gentleman from South Caro- 
lina to maintain that it is a right of the State Legislature to 
interfere whenever, in their judgment, this government trans- 
cends its constitutional limits, and to arrest the operation of 
its laws. 

"I understand him to maintain this right, as a right existing 
under the Constitution . . . 

"I understand him to maintain an authority, on the part of 
the States, thus to interfere, for the purpose of correcting the 
exercise of power by the general government ... I under- 
stand him to maintain that the ultimate power of judging of 

* As reported in William Steele's anecdotes of Dayton, September, 
1825, to Jonathan D. Steele. 

t Jefferson, "Anas," edited by F. B. Sawvel, p. 33 ; 1903. 



268 SECESSION AND CONSTITUTIONAL LIBERTY 

the constitutional extent of its own authority is not lodged 
exclusively in the general government; or any branch of it; 
but that, on the contrary, the States may lawfully decide for 
themselves, and each State for itself, whether, in a given case, 
the act of the general government transcends its power. 

"I understand him to insist that, if the exigency of the case, 
in the opinion of any State government, require it, such State 
government may, by its own sovereign authority, annul an act 
of the general government which it deems plainly and palpably 
unconstitutional. 

"This is the sum of what I understand from him to be the 
South Carolina doctrine . . . And now, sir, what I have 
first to say on this subject is, that at no time, and under no 
circumstances, has New England, or any State in New Eng- 
land, or any respectable body of persons in New England, or 
any public man of standing in New England, put forth such a 
doctrine as the Carolina doctrine. 

"The gentleman has found no cause, he can find none, to 
support his own opinion by New England authority. New 
England has studied the Constitution in other schools and 
under other teachers," etc.* 

A few extracts from New England sources may aptly com- 
ment upon this statement of the honourable gentleman from 
Massachusetts. An extract from the declaration of the Gen- 
eral Court of Massachusetts, on the Embargo, February 22, 
1 8 14, has already been given. 

Mr. Webster may, without flattery, be considered "a public 
man of standing in New England." A citation or two from 
his own career may, therefore, fitly begin these few glosses 
(they might easily be made more numerous) on this statement. 
In August, 18 12, Mr. Webster wrote the, so-called "Rocking- 
ham Memorial." Years later, avowing it in his autobiography, 
he confesses re-reading it with pride. Attacking the policy 
of the government therein, he says : 

"We originally saw nothing, and can now see nothing, either 
in the letter, or the spirit, of the national compact, which makes 
* Webster in reply to Hayne, January 26, 1830. 



APPENDIX 19A 269 

it our duty, to acquiesce in a system, tending to compel us to 
abandon our natural and accustomed pursuits. We regard the 
Constitution as 'an instrument of preservation, not of 
change/ ... 

"We are, sir, from principle and habit attached to the union 
of the states. But our attachment is to the substance, and not 
to the form. It is to the good which this union is capable of 
producing, and not to the evil, which is suffered unnaturally 
to grow out of it. If the time should ever arrive, when this 
union shall be holden together by nothing but the authority of 
the law; when its incorporating, vital principle shall become 
extinct; when its principal exercises shall consist in acts of 
power and authority, not of protection and beneficence; when 
it shall lose the strong bond which it hath hitherto had in the 
public affection ; and w hen, consequently, we shall be one, not 
in interest and mutual regard, but in name and form only ; we, 
sir, shall look on that hour, as the closing scene of our coun- 
try's prosperity. 

"We shrink from the separation of the states, as an event 
fraught with incalculable evils, and it is among our strongest 
objections to the present course of measures, that they have, 
in our opinion, a very dangerous and alarming bearing on 
such an event. If a separation of the states ever should take 
place, it will be, on some occasion, when one portion of the 
country undertakes to control, to regulate, and to sacrifice the 
interest of another; when a small and heated majority in the 
Government, taking counsel of their passions, and not of their 
reason, contemptuously disregarding the interests, and perhaps 
stopping the mouths, of a large and respectable minority, shall 
by hasty, rash, and ruinous measures, threaten to destroy 
essential rights ; and lay waste the most important interests. 

"It shall be our most fervent supplication to Heaven to avert 
both the event and the occasion; and the Government may be 
assured, that the tie that binds us to the Union, will never be 
broken, by us. 

"But although we lament the present war, on all accounts, 
yet do we deprecate it, most of all, as we view it, as we fear, 
the harbinger of French Alliance. . . . 



270 SECESSION AND CONSTITUTIONAL LIBERTY 

"On the subject, of any French connection, either close, or 
the more remote, we have made up our minds. We will, in no 
event, assist in uniting the Republic of America with the mili- 
tary despotism of France. We will have no connection with 
her principles, or her power. If her armed troops, under 
whatever name or character, should come here, we shall regard 
them as enemies. No pressure, domestic, or foreign, shall 
ever compel us to connect our interests with those of the 
house of Corsica; or to yoke ourselves, to the triumphal car of 
the conqueror and the tyrant of continental Europe. In form- 
ing this resolution, we have not been thoughtless of possible 
consequences. We have weighed them. We have reflected 
on the measures, which an adherence to this resolution might 
hereafter occasion. We have considered the events which may 
grow out of it. In the full and undisguised view of these con- 
sequences, we have formed this our resolution, and we affirm 
to you, sir, and to the world, that it is deep, fixed, and un- 
changeable/ ' * 

Later on Mr. Webster brought suit against Mr. Theodore 
Lyman, a leading Bostonian, for printing Mr. J. Q. Adams's 
statement that the Federal party of New England had been 
engaged in a plot to break up the Union and including Mr. 
Webster's name as a person implicated. It is not necessary 
here to go into the evidence (it may be stated that Mr. Webster 
was indubitably shown to have been one of the leaders of the 
Federal party when its proceedings culminated in the "Hart- 
ford Convention"). The leading counsel for the defense, Mr. 
Samuel Hubbard, at different times member of the House, of 
the Constitutional Convention of 1820, State Senator, and 
afterwards Justice of the Supreme Judicial Court, and a "man 
of public standing," 

"Maintained that the States had a Constitutional right to 
secede, and in argument stated this doctrine in the plainest 
terms, without correction by the Court, or dissent from Mr. 
Webster or the Solicitor General. Mr. Hubbard's words 
were: '. . . A confederation of the New England States 

* Webster's "Writings," Vol. Ill, pp. 600, 609, 610; B., 1903. 



APPENDIX 19A 271 

to confer with each other on the subject of dissolving the 
"Union was no treason. The several States are independent 
and not dependent. Every State has a right to secede from the 
Union without committing treason. Here it is stated that 
certain gentlemen were traitors for threatening to dissolve the 
Union. The time will undoubtedly arrive when this subject 
of a dissolution of the Union will be openly discussed in all 
parts of the United States/ " * 

December 19, 1814, Mr. Webster 

"Said in Congress that Congress had no power to raise 
armies by calling out the militia against the will of the States ; 
and he added . . . Tt will be the solemn duty of the State 
Governments to protect their own authority over their own 
militia and to interpose between their own citizens and arbi- 
trary power. These are among the objects for which the State 
Governments exist . . . And I shall exhort them to exercise 
their unquestionable right of providing for the security of 
their own liberties.' No word here of the power of the Fed- 
eral Judiciary to decide the question — only an open and un- 
qualified appeal to the doctrine of States' rights and a practical 
declaration of the right of the States to nullify the Acts of 
Congress. No wonder that such words were followed within 
one month by the declaration of the Hartford Convention, 
that 'In case of infractions of the Constitution affecting the 
sovereignty of a State and the liberty of its people, it is not 
only the right but the duty of such a State to interpose its 
authority for their protection ... In such emergencies 
States which have no common umpire must be their own 
Judges and execute their own decisions.' " f 

Curious to contrast these words with the answer of the 
New England States to< the Kentucky and Virginia Resolu- 
tions ! 

"In regard to the early utterances of Mr. Webster, the fol- 
lowing is from a speech by him in the National House of Rep- 

* Josiah H. Benton, "A Notable Libel Case," p. 2 ; B., 1904. 
i Ibid., pp. 27, 28; B., 1904. 
1—18 



272 SECESSION AND CONSTITUTIONAL LIBERTY 

resentatives, December 9, 18 14. It should be borne in mind 
that this speech was delivered in the midst of the gloomiest 
period of the War of 18 12-15, f° ur months after the battle of 
Bladensburg and the capture of Washington, and one month 
before the British were defeated below New Orleans. The 
speech was first published (1902) by C. H. Van Tyne, in his 
edition of the 'Letters of Daniel Webster,' p. 67. 

" 'In my opinion [the law under consideration for com- 
pulsory army and military service] ought not to be carried 
into effert. The operation of measures thus unconstitutional 
and illegal ought to be prevented, by a resort to other meas- 
ures which are both constitutional and legal. It will be the 
solemn duty of the State Governments to protect their own 
authority over their own Militia and to interpose between their 
citizens and arbitrary power. These are among the objects 
for which the State Governments exist ; and their highest obli- 
gations bind them to the preservation of their own rights and 
the liberties of their people. I express these sentiments here, 
Sir, because I shall express them to my constituents. Both 
they and myself live under a Constitution which teaches us, 
that "the doctrine of non-resistance against arbitrary power 
and oppression is absurd, slavish, and destructive of the good 
and happiness of mankind." With the same earnestness with 
which I now exhort you to forbear from these measures, I 
shall exhort them to exercise their unquestionable right of 
[providing] for the security of their own liberties.' " * 

In order to appreciate Mr. Webster's eloquent remark in his 
speech at Syracuse : 

"This is the truth ; and before the throne of God, and before 
the tribunal of an intelligent people, there is nothing valuable 
but truth, truth, truth. It is not glossary or commentary that 
is valuable; it is not that thing called eloquence, never of the 
greatest value, and often mischievous ; but it is that which can 
stand the test of time and eternity alone — truth." f 

* C. F. Adams, Lee's Centennial, "Studies Military and Diplomatic," 
p. 339- 

t "Works," Vol. XIII, p. 413. 



APPENDIX 19A 273 

In order to appreciate this, it is only necessary to add that 
the foregoing trial for libel took place in 1828 and that Mr. 
Webster's answer to Hayne was in 1830, but two years later. 

Throughout New England at this time secession was advo- 
cated and threatened by the pulpit and the press ; nullification 
was practiced by Governors, legislatures and organized bodies 
of militia; mobs offered forcible resistance to officers of the 
law who were carrying out the acts of the Federal Govern- 
ment; juries refused to commit persons prosecuted under 
those laws. With a final quotation from Mr. Benton's mono- 
graph, Mr. Webster's personal acts will be dismissed, and a 
slight chronological sketch of New England's "understanding 
of the Constitution" added. 

"This prosecution of Mr. Lyman was one of the last acts 
in the long reign of the Federal oligarchy who ruled Massa- 
chusetts for nearly half a century. They had wealth, social 
position and political power, and tolerated no opposition to 
their ascendancy, and punished all political insubordination 
with relentless severity. They were the 'Federal Gentlemen' 
in Boston, the 'Essex Junto' in Essex, and the 'River Gods' 
in the Connecticut Valley. They were accomplished, able and 
patriotic men, who governed the Commonwealth wisely and 
well in its local affairs; but they yielded slowly and with ex- 
treme reluctance to the power of the National Government 
under the Federal Constitution. The Federal Union was to 
them good as long as it worked good to their local interests, 
and when it did not, they deemed it entirely patriotic to con- 
sider the question of its dissolution ; hence the Northern Con- 
federacy scheme of 1804, the violent and almost forcible op- 
position to the Embargo in 1809, and the determined opposi- 
tion to the War of 18 12, culminating in the nullification pro- 
ceedings of the Hartford Convention in 1814." * 

". . . the British Government, through its public minister 
here, a secret agent of that Government was employed in cer- 
tain States, more especially at the seat of government in Mas- 
sachusetts, in fomenting disaffection to the constituted author- 

* J. H. Benton, "A Notable Libel Case," p. 108. 



274 SECESSION AND CONSTITUTIONAL LIBERTY 

ities of the nation, and in intrigues with the disaffected, for 
the purpose . . . eventually, in concert with a British force, 
of destroying the Union and forming the eastern part thereof 
into a political connection with Great Britain. In addition to 
the effect which the discovery of such a procedure ought to 
have on the public councils, it will not fail to render more dear 
to the hearts of all good citizens that happy union of these 
States which, under Divine Providence, is the guaranty of 
their liberties, their safety, their tranquillity, and their pros- 
perity." * 

Nothing can better illustrate the spirit of "the schools in 
which New England studied the Constitution" than the resolu- 
tion of the Massachusetts legislature, after Lawrence's fight, 
that "it did not become a religious people to express any 
approbation of military or naval exploits not immediately 
defensive." 

"Resolved, That to preserve the Union, and support the con- 
stitution of the United States, it becomes the duty of the 
Legislatures of the States ... to watch over, and . . . 
to maintain the power not delegated to the United States, but 
reserved to the States respectively, or to the people, and that a 
due regard to this duty will not permit this Assembly to as- 
sist ... in giving effect to the aforesaid unconstitutional 
act to . . . enforce the Embargo. " f 

"That acts of Congress in violation of the Constitution are 
absolutely void, is an undeniable position ... in cases of 
deliberate, dangerous, and palpable infractions of the Consti- 
tution, affecting the sovereignty of a State, and liberties of the 
people ; it is not only the right but the duty of such a State to 
interpose its authority for their protection, in the manner best 
calculated to secure that end. When emergencies occur which 
are either beyond the reach of the judicial tribunals, or too 
pressing to admit of the delay incident to their forms, States 
which have no common umpire, must be their own judges. 

"Finally, if the Union be destined to dissolution, by reason 

* Madison, Message to Congress, March g, 1912. 

t Resolution of General Assembly of Connecticut, 23d February, 1809. 



Appendix 19A 275 

of the multiplied abuses of bad administrations; it should, if 
possible, be the work of peaceable times, and deliberate con- 
sent. — Some new form of confederacy should be substituted 
among those States, which shall intend to maintain a federal 
relation to each other. — Events may prove that the causes of 
our calamities are deep and permanent. . . . Whenever it 
shall appear that these causes are radical and permanent, a 
separation by equitable arrangements, will be preferable to an 
alliance by constraint, among nominal friends, but real 
enemies, inflamed by mutual hatred and jealousies . . . But 
a severance of the Union by one or more States against the 
will of the rest, and especially in a time of war, can be justified 
only by absolute necessity. These are among the principal 
objections against precipitate measures tending to disunite the 
States, and when examined in connection with the farewell 
address of the Father of his country, they must, it is believed, 
be deemed conclusive." * 

Not to be allowed to tax other people was a grievance suffi- 
cient to call forth the threat : 

"Northern speakers predicted the Deluge if the Bill of the 
Ways and Means Committee were adopted, and argued that 
Massachusetts would have as much right to secede if it were 
passed as South Carolina would in the event the protective 
system were continued." f 

Before the annexation of Texas Massachusetts 

"Resolved, . . . That the project of the annexation of 
Texas, unless arrested on the threshold, may tend to drive 
these States into a dissolution of the Union. 

"Approved by the Governor, March 15, 1844." 

After annexation took place, it again resolved : "Whereas, 
The Commonwealth of Massachusetts has, through her Legis- 
lature, with great unanimity, &c, solemnly and strenuously 

* Proceedings of a Convention of Delegates from the States of Massa- 
chusetts, . . . Connecticut, and Rhode Island, convened at Hartford, 1814; 
Newburyport, 181 5. 

f Cicero W. Harris, "The Sectional Struggle," First Period, part con- 
cerning the early tariffs, etc., p. 222 ; Phila., 1902. 



276 SECESSION AND CONSTITUTIONAL LIBERTY 

protested against the admission, by the Federal Government, 
of the foreign nation of Texas, as a State, into the Union, &c. 

"And whereas, The consent of the executive and legislative 
departments of the Government of the United States has been 
given, by a resolution passed on the twenty-seventh day of 
February last, to the adoption of preliminary measures to ac- 
complish this nefarious project; therefore, be it 

"Resolved, That Massachusetts hereby refuses to acknowl- 
edge the act of the Government of the United States, authoriz- 
ing the admission of Texas, as a legal act, in any way binding 
her from using her utmost exertions, in co-operation with 
other States, by every lawful and constitutional measure, to 
annul its conditions and defeat its accomplishment. 

"Approved by the Governor, March 26, 1845. 

"Resolved, That the Commonwealth of Massachusetts . . . 
is determined, as it doubts not the other states are, to submit to 
undelegated powers in no body of men on earth/' * 

"Resolved, That it be . . . recommended to the Legisla- 
tures of the several States represented in this Convention, to 
adopt all such measures as may be necessary effectually to pro- 
tect the citizens of the said States from the operation and 
effects of all acts which have been or may be passed by the 
Congress of the United States, which shall contain provisions 
subjecting the militia or other citizens to forcible drafts, con- 
scriptions or impressments, not authorized by the Constitution 
of the United States." f 

N. B. — These resolutions were approved by Massachusetts 
and Connecticut. 

"That the people of this State, as one of the parties [itali- 
cized by B. S.] to the Federal compact, have a right to express 
their sense of any violation of its provisions, and that it is the 
duty of this General Assembly ... to interfere for the 
purpose of protecting them from the ruinous infliction of 
usurped and unconstitutional power/' etc. % 

* Massachusetts, on annexation of Texas, March 15, 1844. It will be 
observed that this is a quotation from the Kentucky Resolutions of 1798. 
t Resolution of Hartford Convention, January 4, 1815. 
t Resolutions of Rhode Island on the Embargo, March 4, 1809. 



APPENDIX 19A 277 

"The people ... see that the voice of the New England 
States ... is lost in the national Councils, and that the 
spirit of accommodation . . . which produced the constitu- 
tion . . . have been sacrificed to the bitterness of party, and 
to the aggrandizement of one section of the nation, at the ex- 
pense of another. . . . They have seen a power grow up in 
the southern and western sections of the Union, by the admis- 
sion and multiplication of states, not contemplated by" the 
parties to the constitution, and not warranted by its principles; 
and they foresee an almost infinite progression in this system 
of creation, which threatens eventually to reduce the voice of 
New England, once powerful ... in the national councils, 
to the feeble expression of colonial complaints . , . This act 
is denounced . . . as a gross . . . violation of the prin- 
ciples of the Constitution; and ... it cannot be submitted 
to without a pusillanimous surrender . . . The Committee 
are of opinion that the late act . . . is unconstitutional . . . 
upon the . . . broad . . . ground that the People never 
gave a power to Congress to enact . . . The sovereignty 
reserved to the States, was reserved to protect the Citizens 
from acts of violence by the United States . . . We spurn 
the idea that the free, sovereign, and independent State of 
Massachusetts is reduced to a mere municipal corporation, 
without power to protect its people, and defend them from 
oppression, from whatever quarter it comes. Whenever the 
national compact is violated . . . this legislature is bound to 
interpose its power, and wrest from the oppressor his vic- 
tim . . . 

"Resolved, That . . . the power of prohibiting to its citi- 
zens the exercise of these rights was never delegated to the 
general government, and that all Laws passed by that Govern- 
ment, intended to have such an effect, are therefore unconstitu- 
tional and void." * 

"Resolved, That no territory hereafter applying to be ad- 
mitted to the Union, as a State, should be admitted without a 
condition that domestic slavery should be utterly extinguished 
within its borders, and Massachusetts denies the validity of 

* General Court of Massachusetts on the Embargo, February 22, 1814. 



278 SECESSION AND CONSTITUTIONAL LIBERTY 

any compromise whatsoever, that may have been or that here- 
after may be, entered into by persons in the government of the 
Union, intended to preclude the future application of such a 
condition by the people acting through their representatives in 
the Congress of the United States." * 

"Resolved, That if that constitution shall finally be forced 
upon Kansas . . . then, in the opinion of this legislature, 
they will be justified in resisting it at all hazards and to the 
last extremity; and in so righteous a struggle, the people of 
Maine are ready to aid them, both by sympathy and action." f 

"Indeed, it would be useful for the general good, if the State 
Legislatures, were often to cast a watchful eye towards the 
general Government, with a view, candidly to consider, and 
judiciously discern, whether the powers delegated to the 
United States are not exceeded, or are so exercised as not to 
interfere with or counteract those which are reserved by the 
people for their own management. . . . Whenever our na- 
tional legislature is led to overleap the prescribed bounds of 
their constitutional powers, on the State Legislatures, in great 
emergencies, devolves the arduous task — it is their right — it 
becomes their duty, to interpose their protecting shield between 
the right and liberty of the people, and the assumed power of 
the General Government." % 

"On the fullest deliberation, your committee are not able 
to discover that the constitution of the United States justifies 
this claim ... it must not be forgotten, that the state of 
Connecticut is a FREE, SOVEREIGN and INDEPENDENT 
state; that the United States are a confederacy of states; that 
we are a confederated and not a consolidated republic. The 
governor of this state is under a high and solemn obligation, 
'to maintain the lawful rights and privileges thereof, as a sov- 
ereign, free and independent state,' as he is 'to support the 
constitution of the United States,' and the obligation to sup- 
port the latter, imposes an additional obligation to support the 
former. . . . The government of this state, as it has ever 

* Massachusetts, on the admission of Texas, March 26, 1845. 
f Maine, March 16, 1858. 

t Speech of Governor Trumbull to the Legislature of Connecticut, 
February, 1829. 



APPENDIX 19A 279 

been, so it will continue to be, ready to comply with all consti- 
tutional requisitions of the general government" [i. e., that 
which itself judges to be such]. "Faithful to itself and pos- 
terity, it will be faithful to the United States.' ' * 

"On the second question, viz., when the militia are called 
for by the President of the United States, who is to be the 
judge whether those exigencies provided for by the constitu- 
tion of the United States, exist or not? they were also unani- 
mously of opinion that the executive of the State must, and of 
right ought to be judge. . . . 

"It is very much to be regretted that there should exist a 
difference of opinion between the President of the United 
States and the government of the individual States in any 
case, and particularly so as it respects the disposing of the 
detailed militia, when the nation is involved in war. Satisfied, 
however, that the principle adopted, and the course this State 
has pursued on that subject is not only perfectly in agreement 
with the letter, but with the spirit of the Constitution of the 
United States, I conceive an adherence thereunto indispen- 
sable; but should this General Assembly think the course er- 
roneous, there is now an opportunity to correct it."f 

"In 18 13, Governor Martin Chittenden took a similar view 
of the constitutional relation of the state militia to the general 
government as that already adopted by the authorities of 
other New England States. ... The majority of the As- 
sembly adopted a report indorsing his views ... By a 
Proclamation of November 10, the Governor commanded the 
recall of a portion of the militia which 'has been ordered from 
our frontiers for the defense of a neighboring State, and has 
been placed under the command and at the disposal of an 
officer of the United States, out of the jurisdiction or control 
of the Executive of this State/ The refusal of the troops to 
obey his orders, and the arrest of his representative, was fol- 
lowed by the introduction of a resolution in Congress instruct- 
ing the prosecution of the Governor for treason. A counter 
resolution was presented in the Legislature of Massachusetts 

* Connecticut, on the Militia Question, August 25, 1812. 
t Rhode Island, on the Militia Question, October 6, 1812. 



280 SECESSION AND CONSTITUTIONAL LIBERTY 

pledging the support of the State to the Governor and people 
of Vermont in their efforts to maintain their constitutional 
rights. This led the Legislature of New Jersey, Feb. 12, 1814, 
to adopt the following resolution : "Resolved, That the Legis- 
lature regards, with contempt and abhorrence, the ravings of 
an infuriated faction either as issuing from a legislative body, 
a maniac governor, or ambitious or discontented demagogues ; 
that the friends of our country and government may rest as- 
sured, that the people of this State, will meet internal insurrec- 
tion with the same promptitude they will the invasion of a 
cruel, vindictive and savage foe.' The Legislature of Pennsyl- 
vania, March 10, 18 14, also adopted a Report and Resolutions 
condemning the actions of the Governor and disapproving the 
proposed resolutions of Massachusetts as 'evidently intended 
to intimidate' and 'accompanied by a threat/ and 'calculated to 
add to the calamities of the war — the horrors of a civil war/ 
and finally resolving 'that they view with the utmost concern 
and disapprobation every attempt to screen from just punish- 
ment any individual or individuals, however elevated by sta- 
tion, who may violate the Constitution or laws of the United 
States, or who may directly adhere to or afford aid or comfort 
to the enemies of our beloved country/ " * 

"And whereas the principles of the plan and bill aforesaid, 
are, in the opinion of this assembly, not only intolerably 
burdensome and oppressive, but utterly subversive of the 
rights and liberties of the people of this state, and the freedom, 
sovereignty, and independence of the same, and inconsistent 
with the principles of the constitution of the United States. 

"Resolved, That . . . the Governor of this state is hereby 
requested forthwith to convoke the General Assembly ; and, to 
avoid delay, he is hereby authorized and requested to issue his 
proclamation, requiring the attendance of the members thereof 
at such time and place as he may appoint, to the end that op- 
portunity may be given to consider what measures may be 
adopted to secure and preserve the rights and liberties of the 

* State Documents on Federal Relations, edited by Hermann V. Ames, 
to which the writer is indebted for a large proportion of citations in this 
Appendix. 



APPENDIX 19A 281 

people of this state, and the freedom, sovereignty and inde- 
pendence of the same." * 

"Resolved, That the Constitution of the United States does 
not invest the General Government with unlimited and absolute 
powers, but confers only a special and modified sovereignty, 
without authority to cede to a foreign power any portion of 
territory belonging to a State, without its consent. 

"Resolved, That this State protests against the adoption, 
by the Government of the United States, of the line of boun- 
dary recommended by the King of Holland as a suitable boun- 
dary between Great Britain and the United States; inasmuch 
as it will be a violation of the rights of Maine, — rights ac- 
knowledged and insisted upon by the General Government, — 
and will be a precedent, which endangers the integrity, as well 
as the independence, of every State in the Union. 

"Resolved, That while the people of this State are disposed 
to yield a ready obedience to the Constitution and laws of the 
United States, they will never consent to surrender any portion 
of their territory, on the recommendation of a Foreign 
Power." f 

"Resolved . . . that the Government of the United 
States, in permitting the same to be made a question by the 
said Commissioners, and to be by them submitted to the arbi- 
tration of the King of the Netherlands, without the consent of 
Massachusetts and Maine previously obtained, exceeded its 
constitutional powers, and that any decision which the said 
King might have given upon the said question, would have 
been entirely null and void, for want of constitutional power 
in the Government of the United States to make the sub- 
mission. . . . 

"Resolved, That the Government of the United States has 
no constitutional right to cede any portion of territory of the 
States composing the Union to any foreign power, or to de- 
prive any State of any land, or other property without the 
consent of such State, previously obtained ; and that the adop- 

* Connecticut, on Conscription Bill, October, 1814. 
f Resolves of Maine, January 19, 1832. 



282 SECESSION AND CONSTITUTIONAL LIBERTY 

tion of the aforesaid new boundary line, recommended, as 
aforesaid, by the King of the Netherlands, without the con- 
sent, previously obtained, of the States of Massachusetts and 
Maine, would be a violation of the rights of jurisdiction and 
property, belonging respectively to the said States, and secured 
to them by the Federal Constitution; and that any act, pur- 
porting to have such effect, would be wholly null and void, 
and in no way obligatory upon the Government or People of 
either of the said States. 

"Resolved, That as the adoption, by the Government of the 
United States, of the aforesaid new boundary line, so recom- 
mended by the said King of the Netherlands, would deprive 
the Commonwealth of Massachusetts of large tracts of land, 
without equivalent, it is not expedient for the said Common- 
wealth to give consent thereto; and that the General Court 
hereby solemnly protest against such adoption, declaring, that 
any act, purporting to have such effect, will have been per- 
formed without the consent of the Commonwealth, and in 
violation of the rights thereof, as secured by the Federal 
Constitution, and will be consequently null and void and in no 
way obligatory upon the Government or people." * 

"Resolved, That the Commonwealth of Massachusetts, 
faithful to the compact between the people of the United 
States, according to the plain meaning and intent in which it 
was understood and acceded to by them, is sincerely anxious 
for its preservation, but that it is determined, as it doubts not 
the other states are, to submit to undelegated powers in no 
body of men on earth; That the project of the annexation of 
Texas, unless arrested on the threshold, may tend to drive 
these states into a dissolution of the union, and will furnish 
new calumnies against republican governments of exposing 
the gross contradiction of a people professing to be free, and 
yet seeking to extend and perpetuate the subjugation of their 
slaves." f 

"With us they will never suffer our common rights, under 

* Resolution of Massachusetts, February 15, 1832. 

t Massachusetts, on the annexation of Texas, March 15, 1844. 



APPENDIX 19A 283 

the constitution, to be prostrated by a government we have 
ourselves created." * 

"While this state maintains its sovereignty and independ- 
ence, all the citizens can find protection against outrage and 
injustice in the strong arm of the state government." f 

"... Nations acknowledge no judge between them upon 
earth, and their Governments, from necessity, must in their 
intercourse with each other decide when the failure of one 
party to a contract to perform its obligations, absolves the 
other from the reciprocal fulfilment of its own. But this last 
of earthly powers is not necessary to the freedom or inde- 
pendence of States, connected together by the immediate action 
of the people of whom they consist. To the people alone is 
there reserved, as well the dissolving as the constituent power 
. . . and under these limitations, have the people of each 
State in the Union a right to secede from the confederated 
union itself. 

"Thus stands the RIGHT. But the indissoluble link of 
union between the people of the several states of this con- 
federated nation, is after all not in the right, but in the heart 
If the day should ever come (may Heaven avert it) when the 
affections of the people of these states shall be alienated from 
each other; . . . far better will it be for the people of the 
disunited states to part in friendship from each other, than to 
be held together by constraint. Then will be the time for 
reverting to the precedents which occurred at the formation 
and adoption of the Constitution, to form again a more per- 
fect union, by dissolving that which could no longer bind, and 
to leave the separated parts to be reunited by the law of 
political gravitation to the centre . . . " $ 

"I will not yet despair. I will rather anticipate a new con- 
federacy, exempt from the corrupt and corrupting influence 
and oppression of the aristocratic democrats of the South. 
There will be (and our children, at farthest, will see it) a 

* Legislature of Rhode Island, November 5, 1814. 
f Massachusetts, on the Enforcement Act, February 15, 1809. 
t John Quincy Adams, "The Jubilee of the Constitution, a Discourse," 
April 30, 1839; N. Y., 1839. 



284 SECESSION AND CONSTITUTIONAL LIBERTY 

separation. The white and black population will mark the 
boundary," etc.* 

"The principles of our Revolution point to the remedy — 
a separation. That this can be accomplished, and without 
spilling one drop of blood, I have little doubt . . . 

"I do not believe in the practicability of a long continued 
Union. A Northern Confederacy would unite congenial char- 
acters and present a fairer prospect of public happiness ; while 
the Southern States having a similarity of habits, might be 
left to manage their own affairs in their own way. If a sepa- 
ration were to take place, our mutual wants would render a 
friendly : . . intercourse inevitable . . . [The separa- 
tion] must begin in Massachusetts,' ' etc. + 

"Pray look into the Constitution, and particularly to the 
ioth article of the amendments. How are the powers reserved 
to the States respectively, or to the people, to be maintained, 
but by the respective States judging for themselves and putting 
their negative on the usurpation of the general government." $ 

Mr. Pickering was, at the time, the political associate of Mr. 
Webster; Mr. Gore, to whom the latter letter was addressed 
(afterwards Governor of Massachusetts, and one of its Sena- 
tors), was Mr. Webster's legal preceptor, from whose office 
the latter had been admitted to the bar some four years earlier. 

"If this bill passes, it is my deliberate opinion that it is 
virtually a dissolution of the Union; that it will free the States 
from their moral obligation ; and it will be the right of all, as 
it will be the duty of some, definitely to prepare for a separa- 
tion — amicably if they can, violently if .they must." § 

Mr. Quincy was called to order (by a Southern member). 
The Speaker sustained the point and ruled that the above sug- 
gestion was out of order. An appeal was taken from his de- 

* Col. Timothy Pickering (Postmaster-General, Secretary of War, Sec- 
retary of State, etc., in Washington's Cabinet), Letter of December 24, 
1803 ; Lodge, "Life of Cabot." 

t Col. Timothy Pickering, Letter of January 29, 1804. 

t Pickering to C. Gore, January 8, 1809, Henry Adams, "New England 
Federalism," B., 1877. 

§ Hon. Josiah Quincy, member of Congress from Massachusetts in 
181 1, on Bill for Admission of Louisiana. 



APPENDIX 19A 285 

cision, and it was reversed. Mr. Quincy went on to vindicate 
his position, and said : 

"Is there a principle of public law better settled or more 
conformable to the plainest suggestions of reason than that 
the violation of a contract by one of the parties may be con- 
sidered as exempting the other from its obligations ? Suppose, 
in private life, thirteen form a partnership . . ." etc. 

Was it the same Mr. Quincy (or did Mr. Quincy change 
with his circumstances?) who wrote in 1863 to Mr. Lincoln, 
referring to the latter's celebrated "Conkling letter" : 

"I write under the impression that the victory of the United 
States in this war is inevitable; compromise is impossible. 
Peace on any other basis would be the establishment of two 
nations . . . Can we leave to posterity a more cruel inheri- 
tance, or one more hopeless of happiness and prosperity?"* 

Mr. John Quincy Adams affirmed that a plan to dissolve the 
Union 

"had been formed in the winter of i8o3~'4 [in New Eng- 
land immediately after and as consequence of the acquisition 
of Louisiana]. This he told Mr. Jefferson in 1809; about the 
same time he 'urged that a continuance of the embargo much 
longer would certainly be met by forcible resistance supported 
by the Legislature and probably by the judiciary of [Massa.] 
. . . That their [the leaders'] object was, and has been for 
several years, a dissolution of the Union ... he knew from 
unequivocal evidence and that a military leader had even been 
selected to head the movement." f 

These statements he reaffirmed in 1828, when himself 
President. 

"If a separation were desirable to any part of the Union, it 
would be to the Middle and Southern States, particularly to 
the latter, who have been so long harassed with the com- 
plaints, the restlessness, the turbulence, and the ingratitude of 

♦Nicolay & Hay's "Lincoln," Vol. VII, p. 386; N. Y., 1890. 
t Randall's "Life of Jefferson." 



286 SECESSION AND CONSTITUTIONAL LIBERTY 

the Eastern States, that their patience has been fried almost 
beyond endurance." 

The above statement is made in Carey's "The Olive Branch" 
(1815). In view of the extracts herein given it seems that 
this assertion of Mr. Carey (a Northern man) was not with- 
out some justification. 

"It must be borne in mind that not once in this plotting of 
1803-4 was the right of a State or of a group of States to 
secede questioned. The only arguments against secession were 
( 1 ) The immaturity of the plot, the unripeness of the people 
for following the leaders, and (2) The probability that noth- 
ing would be gained by withdrawal into a smaller confederacy. 
Hamilton's only argument against the later phase of the move- 
ment was that the real trouble was not so much Union with the 
South, or even the influence of Virginia, but it was democracy ; 
and he could not see that by subdivision of the union any other 
result would be achieved than to make in some parts democ- 
racy all the more concentrated and troublesome. Two or 
three of the leaders were growing into a conviction that pos- 
sibly the people were not so very bad repositories of power, 
and they were trimming sails to catch the popular breeze. 
Rufus King and Oliver Wolcott were among these. But not 
one of them argued that neither New England nor New York 
nor any other section had a right to leave the Union. Wash- 
ington had worked for 'an indissoluble Union'; but his col- 
leagues clearly did not suppose the Union indissoluble. Cabot, 
while unprepared for precipitate action, wished not to be mis- 
understood. 'A separation now is impracticable because we do 
not feel the necessity or utility of it. Separation will be un- 
avoidable when our loyalty to the Union is generally perceived 
to be the instrument of debasement and impoverishment.' 
This was the average height of the logic used — secession rather 
than poverty. We look in vain for any high-keyed patriot- 
ism." * 

"The commission of one John Henry was made out by Sir 

* Edward Payson Powell, "Nullification and Secession in the United 
States," pp. 138-139; New York, 1897. 



APPENDIX 19A 287 

James Craig, Governor of the British provinces of North 
America. This commission asked for 'the earliest information 
as to how far, in case of war, England could look for as- 
sistance/ Henry reported that 'the Governor of Vermont 
made no secret of his determination, as commander-in-chief of 
the militia, to refuse obedience to any command of the general 
government.' From Boston he wrote in a similar vein. But 
not conceiving himself well treated, this spy turned all his 
papers over to our government. Madison declared it was 
perfidy quite unendurable on the part of a neighboring govern- 
ment. ... 

"In April of 1812 Congress practically declared war by 
authorizing the President to call on the State executives to 
organize their militia for marching at a moment's warning. A 
formal declaration followed two months later. This act of the 
government called out at once from the Federalists in Con- 
gress an address to the people of New England declaring the 
war needless and unwise. It bore prompt fruit. The Massa- 
chusetts House of Representatives voted an address denounc- 
ing the war as a wanton sacrifice of the interests of New 
England. This address called for town meetings, to consult 
as to the best methods for protest and action ; — not to aid the 
government but to hinder it. 'Express your sentiments with- 
out fear' was the advice given. 'And let the sound of your 
disapprobation of this war be loud and deep. If your sons 
be torn away from you by conscription, consign them to the 
care of God; but let there be no volunteers except for de- 
fensive war.' This was at the very outset practical secession. 
The State of Massachusetts asserted its supreme right, inside 
the Union, to decide above the Nation, and for the nation. 
It furthermore refused to fight in any war where not directly 
assailed on its own soil. 

". . . Dearborn, who had been appointed to command in 
the East, stayed in Boston waiting for something to turn up. 
Every possible hindrance was thrown in the way of his secur- 
ing enlistments. Those who did enlist were arrested on real 
or fictitious charges of debt; and the Courts cheerfully insisted 

1—19 



288 SECESSION AND CONSTITUTIONAL LIBERTY 

that 'while the man was a debtor he was the property of the 
creditor, and could not leave the State' if he would." * 

"The condition of affairs brought about by these intrigues is 
illustrated by the following passage from the Rutland Herald 
of Vermont : 'The intelligence that comes from every quarter 
denotes an uncommon agitation of the public mind, by the late 
measures of the Federal representatives. In several papers 
there are strong intimations that it will be soon necessary to 
dissolve the Federal Union, and not be embarrassed any longer 
with the debts and negroes of the Southern States. Calm and 
prudent counsels are certainly best in the present emergency. 
And it cannot be too often inculcated upon our citizens that 
their duty and safety requires that they pay a steady regard 
to civil and moral considerations in every movement they 
make. If it was ever necessary to look out for calm, prudent, 
and judicious men for Federal representatives, now is the 
time. A few hot, rash, and hasty men in Congress, and the 
Federal Union will most probably be rent asunder.' 

"Secession or dissolution was in the air. Few believed it 
possible to hold together. The Alien and Sedition Acts were 
indiscreet in the extreme, apart from their tyrannical char- 
acter. Resistance became a virtue. New England was hardly 
behind Virginia in its disgust. The Middle States were turned 
over to Republican opposition. John Adams wrote that all the 
Southern and Western States were in unison with Virginia 
and Kentucky; and menaced separation." f 

"Of the Federal leaders there still remained in Washington, 
among others, Tracy, Griswold, Plumer, and Pickering for- 
merly of Pennsylvania, now of Massachusetts, These beheld 
with dismay and horror the dissolution of the party and their 
own loss of power. Accustomed to rule, of a ruling caste, 
they now not only found themselves turned out of the offices 
of the nation, but Republicanism pursuing them into their own 
States, and depriving them of emolument and power, where 
before the Union they had been omnipotent. The South 

* Edward Payson Powell, "Nullification and Secession in the United 
States," pp. 207-209 ; N. Y., 1897. 
t Ibid., pp. 89-90. 



APPENDIX 19A 289 

clearly had invaded their rights. Thomas Jefferson their arch- 
enemy was President. He gave no heed to their claims to the 
disposal of local offices. He had retorted on their clergy for 
their attacks, that they had 'wrapped the Christian religion in 
rags of their own. . . . Divest it of these, and it is a religion 
of all others friendly to liberty, science, and the finest expres- 
sion of the human mind/ Political experience there was none 
for them to draw upon. They acted on the native impulses of 
their individual characters. They did not wait for a popular 
reaction, as a defeated party would now do; nor take any steps 
to deserve such a reaction. Hamilton devised a cunning 
scheme for a third party, to be called 'The Christian Constitu- 
tional Party' ; hoping to rally the religious element of the 
nation against free thinking. For at this moment was taking 
place an alliance of liberty in the church and liberty in the 
state. Thomas Paine, who had been left to his ignominious 
and undeserved fate by Adams, was sent for by Jefferson and 
brought home in a national vessel. Every mile that the Puri- 
tans moved westward increased their tendency to break with 
precedent. Ames declared the overthrow of Federalism to be 
due to the newspapers. They are, he said, 'an overmatch for 
any government/ The only possible political devices left to 
the fallen leaders seemed to be an appeal to religious preju- 
dice; the censorship of the press; the renewal of the Sedition 
and Alien Acts. But all these failed. Federalist judges were 
impeached by the Republicans; the tyrannous Acts were sup- 
pressed ; religious liberty was encouraged. 'We must be pre- 
pared/ wrote one, 'to see the doom of every influential Fed- 
eralist, and of every man of considerable property who is not 
of the reigning sect/ 

"Desperation succeeded discouragement, and desperate 
measures followed political scheming. Judge Reeve of Con- 
necticut wrote to Tracy in Congress, T have seen many of our 
friends ; and all that I have seen, and most that I have heard 
from, believe that we must separate ; and that this is the most 
favorable moment.' There was some effort at secrecy; but 
the conspirators could not have hoped not ultimately to be dis- 



290 SECESSION AND CONSTITUTIONAL LIBERTY 

covered. They undoubtedly believed New England was with 
them ; and they should be safe. 

"Pickering was the chief conspirator. Believing, without a 
wavering doubt, in his own political sagacity, he was unwilling 
to brook a suggestion of caution or delay. Cabot was well 
enough for a philosopher ; but for action he was too slow and 
timid for Washington's Secretary of State. Nor did Picker- 
ing have a thought that Hamilton was as much entitled to 
leadership as himself. If delay were tolerated, he insisted 
that democracy would have its work of ruin accomplished. 
The attitude of Jefferson afforded apparently every advantage 
for conspirators to, at least, dally with plots. In his inaugural 
he had said, 'If there be any among us who would wish to 
dissolve the Union, or to change its republican form, let him 
stand undisturbed, as monuments of the safety with which 
error of opinion may be tolerated where reason is left free 
to combat it.' 

"Pickering believed the proposition to secede 'would be 
welcomed in Connecticut, and could we doubt of New Hamp- 
shire? But New York must be associated; and how is her 
concurrence to be obtained? She must be made the centre of 
the confederacy. Vermont and New Jersey would follow of 
course, and Rhode Island of necessity.' Roger Griswold, ex- 
amining the finances, had found that the States above men- . 
tioned, to be embraced by the 'Northern Confederacy,' 'now 
pay as much or more of the public revenues, as would dis- 
charge their share of the public debts, due those States, and 
abroad.' Ex-Governor Griswold wrote to Oliver Wolcott, 
'The project which we had formed was to induce if possible 
the legislatures of the three New England States who remain 
Federal, to commence measures, which should call for a re- 
union of the northern states.' The three States he relied on 
were Connecticut, Massachusetts then including Maine, and 
New Hampshire. 'The people of the East cannot reconcile 
their habits, views, and interests,' wrote Pickering, 'to those 
of the South and West.' George Cabot however wrote that, 
while 'a separation at some period not very remote may prob- 
ably take place,' he thought 'a separation now is impracticable. 



APPENDIX 19A 291 

If it is prematurely attempted, those few only will promote 
it who discern what is hidden from the multitude' ; that is the 
multitude would not feel as the leaders felt who saw power 
sliding from their grasp. 'We shall go,' he added, 'the way of 
all governments wholly popular — from bad to worse — until 
the evils no longer tolerable shall generate their own reme- 
dies.' Here was clearly treason not only to the union, but to 
popular government; and it was evidently the sentiment of 
a very large class of Federalist leaders. Hamilton at a ban- 
quet in New York, expressed his views of popular government 
by shouting, 'The People ! Gentlemen ! the people are a great 
Beast !' John Adams now watched the traitors with the anx- 
ious eagerness of a detective. It was certain he had discovered 
more or less of their purposes; and was ready at the first 
move to pounce on them with genuine Adams' fury. Cabot 
wrote from Boston, after consulting Fisher Ames, Chief- Jus- 
tice Parsons, and a few more, that, while some were of the 
same opinion as Pickering, most thought the time not quite 
ready. As for himself he could not believe essential good 
would come from secession : 'while we retain maxims and prin- 
ciples which all experience and reason pronounces to be im- 
practicable and absurd. Even in New England, where there 
is among the body of the people more wisdom and virtue 
than in any other part of the United States, we are full of 
errors. We are too democratic altogether ; and I hold democ- 
racy to be the government of the worst. ... A separation 
now is impracticable, because we do not feel the necessity of 
it. The separation will be unavoidable when our loyalty is 
perceived to be the instrument of impoverishment. ' In other 
words Cabot and 'the Essex Junto' saw the country so pros- 
perous under Jefferson that they dared not precipitate seces- 
sion. Griswold was in despair. He wrote to Wolcott that : 
'whilst we are waiting for the time to arrive in New Eng- 
land, it is certain the democracy is making daily inroads on us, 
and our means of resistance are lessening every day. Yet it 
appears impossible to induce our friends to make any decisive 
exertions.' 

"Utterly unable to move ahead without New York, there 



292 SECESSION AND CONSTITUTIONAL LIBERTY 

was now initiated the most unprincipled plot ever conceived 
under a free government; ending in a fatality as wretched as 
the plot itself. New York was rapidly approaching its guber- 
natorial election. On the one side was the Federal party, with 
Morgan Lewis in nomination — backed by a large number of 
the Republicans ; on the other Burr and his friends. Notwith- 
standing the fact that Burr had failed of securing the endorse- 
ment of Hamilton and the New York Federal caucus, the Fed- 
eralist leaders of New England, Pickering, Griswold, Wol- 
cott, and others, put their heads together, and agreed to throw 
all their influence for him, on the understanding that, thus 
securing New York, he should carry it into the proposed 
Northern Confederacy. Burr was nominated by a few Re- 
publicans Feb. 1 8, 1804. Griswold wrote: 'If Colonel Burr 
is elevated in New York to the office of Governor by the votes 
of Federalism, will he not be considered, and must he not in 
fact become the head of the Northern interest? But what 
else can we do ? By supporting Mr. Burr, we gain some sup- 
port, although it is of a doubtful nature, and of which God 
knows we have cause enough to be jealous. In short I see 
nothing else left for us.' Pickering with his usual frankness 
wrote: 'The Federalists anxiously desire the election of Mr. 
Burr. Mr. Burr alone we think can break the Democratic 
phalanx. And if a separation should be deemed proper, the 
New England States, New York, and New Jersey would 
naturally be united.' Rufus King was won over substantially 
in New York. But Hamilton, clearly seeing that such a con- 
spiracy would only end in displacing himself as the great 
leader of the Federalists, threw all his weight against Burr. 
It was a sharp battle at the polls; and Burr failed by only 
seven thousand votes of carrying the State, while he barely 
carried the city of New York. The plot was killed. The 
New England conspirators could do nothing whatever but 
retire into their own States, and leave Burr to the fatal folly 
of their friendship." * 

"Texas . . . will be the field of long and most angry battles 

* Edward Payson Powell, "Nullification and Secession in the United 
States," pp. 126-131; New York, 1897. 



APPENDIX 19A 293 

in our Congress next winter. But fear nothing. Should a 
vote for this object (annexation) be obtained, the Union will 
be dissolved; and, as I believe, without a doubt, the emanci- 
pation of our slaves will thus be greatly hastened." * 

It is to be observed that some of these New England fulmi- 
nations use the very language of the Kentucky and Virginia 
Resolutions (which at the time they so strongly deprecated — 
their own ox not being gored). Some of the extracts refer 
to a period later than Mr. Webster's speech and cannot there- 
fore be taken strictly as contradictory of it. They serve, 
however, to show that "the truth of the statement of Alex- 
ander Johnston, that 'Almost every State in the Union in 
turn declared its own sovereignty and denounced as almost 
treasonable similar declarations in other cases by other States' 
is fully sustained by the following documents." f 

Some of these inconsistencies are sufficiently amusing, — or 
painful, as one may look at it. 19Al For similar reasons I give 
a few early instances of New England tendencies to think, if 
not in an "organic," at least in a decidedly "non-compact" 
manner, 406 ; viz. : 

"It appears that Massachusetts contested the power of the 
united colonies to declare war {circa 1651), and notwithstand- 
ing the express grant of that power in the articles of union, 
(of 1643?) insisted that to be compelled to act by the deci- 
sions of the commissioners, was inconsistent with the liberty 
of the colonies." % 

"A majority of the people of Massachusetts are in opposi- 
tion to the government. Some of the leaders avow the sub- 
version of it to be their object, together with the abolition of 
debts, the division of property, and a reunion with Great 
Britain. In all the eastern states, the same temper prevails 
more or less, and will certainly break forth whenever the op- 
portune moment may arrive. The malcontents are in close 

* Rev. Joseph Tuckerman, Letter to Blanco White, Boston, October 
24, 1837; "Life of Blanco White." 

t Hermann V. Ames, "State Documents on Federal Relations," Preface, 
$ Marshall's "Life of Washington," Vol. I, p. 160; L., 1804. 



294 SECESSION AND CONSTITUTIONAL LIBERTY 

connexion with Vermont, and that district, it is believed, is 
in negotiation with the government of Canada," etc.* 

The Journals of Congress show that an influential motive 
of the recognition by Congress of the independence of the 
New Hampshire grants, or Vermont, was the fear that its 
people would otherwise make common cause with Great 
Britain. 

"The legislature cannot, without horror, entertain the most 
distant idea of the dissolution of the union, which subsists 
between the United States, and the ruin which would inevita- 
bly insue thereon; but with great pain they must observe, 
that the extraordinary grants and allowances which Congress 
have thought proper to their civil and military officers, have 
produced such effects in this Commonwealth, as are of a 
threatening aspect," etc. f 

"Congress met and adjourned from day to day without do- 
ing anything, the parties being too much out of temper to do 
business together. The eastern members particularly, who, 
with Smith from South Carolina, were the principal gam- 
blers in these scenes, threatened a secession and dissolution." $ 

"Although a few threats were made later (than 1788) to 
dissolve the union, notably by Massachusetts when it seemed 
that assumption was defeated." § 

"I remember the fearful excitement at the North when 
Jackson ordered the removal of the national deposits from 
the banks in Boston; and, looking back, I could name grave, 
sober men of that orderly city, and some of them of high so- 
cial and moral standing, who talked, in the frenzy of the 
time, of 'muskets being shouldered, and a march to Washing- 
ton." || 

"In 1856 Mr. Thomas Wentworth Higginson headed the 

* Col. Henry Lee, Letter to Washington. Kemp, "Shay's Rebellion." 
Marshall, Vol. V, p. 117. 

t Letter from Massachusetts, concerning the commutation of officers' 
pay. Journals of Congress, September 25, 1783 ; cf . Appendix 2, p. 138. 

t About assumption, circa 1790. Jefferson, The Anas. 

§ "The Federalist System," by John Spencer Bassett, p. 42 ; 1906. 

|| A. B. Muzzy, "Prime Movers of the Revolution," p. 291 ; Boston, c. 
J891. 



APPENDIX 19A 295 

list of signatures to a call for a convention to assemble at 
Worcester, with the ostensible object of considering measures 
for the dissolution of the Union." * 

For other examples of "other teachers" under whom "New 
England studied the Constitution," see Henry Adams, "New 
England Federalism." 

"All else is gone; from those great eyes 

The soul has fled; 
When faith is lost, when honor dies, 
The man is dead." 

This emanation of "the New England conscience" was not 
fulmined by Mr. Whittier when the "Defender of the Con- 
stitution" was denying history in his efforts, but when, per- 
ceiving to what end his country was tending, and, it may be 
hoped, in repentant desire to prevent the evils to which such 
statements had contributed, he was defending the compacts 
of the Constitution. 



APPENDIX 19A 1 

{Page 293) 

"Preamble and Resolutions on the propositions of Pennsyl- 
vania to amend the constitution of the United States. 

"The committee to whom was referred the communication 
of the Governor of Pennsylvania, covering certain resolutions 
of the Legislature of that State, proposing an amendment to 
the constitution of the United States, by the appointment of 
an impartial tribunal to decide disputes between the state and 
federal judiciary, have had the same under their considera- 
tion, and are of opinion that a tribunal is already provided by 
the constitution, of the United States, to wit, the Supreme 
Court, . . ." Proceedings of Legislature of Virginia, 18 10. 

"Nor can the State of South Carolina derive the smallest 
aid in sustaining its doctrine of resistance to the federal au- 
thority, from the manner in which the Constitution was 

* William Cleaver Wilkinson, "Daniel Webster," p. 62; N. Y., 191 1, 



296 SECESSION AND CONSTITUTIONAL LIBERTY 

formed ; whether it was the work of the people of the United 
States collectively, or is to be considered as a compact between 
sovereign States, or between the people of the several States 
with each other, there is, there can be, there ought to be, but 
one rule, which is, that the majority must govern." * 

"Resolved, That the People have conferred no power upon 
their State Legislature to impugn the Acts of the Federal Gov- 
ernment or the decisions of the Supreme Court of the United 
States." f 



APPENDIX 20 
{Page 54) 

"To the difficulties already mentioned, may be added the 
interfering pretensions of the larger and smaller states. We 
cannot err in supposing that the former would contend for a 
participation in the government, fully proportioned to their 
superior wealth and importance; and that the latter would 
not be less tenacious of the equality at present enjoyed by 
them. We may well suppose that neither side would entirely 
yield to the other, and consequently that the struggle could be 
terminated only by compromise. It is extremely probable also, 
that after the ratio of representation had been adjusted, this 
very compromise must have produced a fresh struggle between 
the same parties, to give such a turn to the organization of 
the government, and to the distribution of its powers, as would 
increase the importance of the branches, in forming which 
they had respectively obtained the greatest share of influence 
. . . Nor could it have been the large and small* states only, 
which would marshal themselves in opposition to each other 
on various points. Other combinations, resulting from a dif- 
ference of local position and policy, must have created addi- 
tional difficulties. Would it be wonderful, if under the pres- 

* Kentucky, Reply to South Carolina, January 27, 1830. 
t Resolves of House of Representatives, South Carolina, December, 
1824. 



APPENDIX 20 297 

sure of all these difficulties, the convention should have been 
forced into some deviations from that artificial structure 
and regular symmetry, which an abstract view of the subject 
might lead an ingenious theorist to bestow on a constitution 
planned in his closet, or his imagination ?" * 

It is only necessary to observe that this extract, which so 
clearly shows the parties to the Constitution and the mode 
of its construction, though, for obvious reasons, written as 
if deduced from the Instrument, is a transcript from Mr. 
Madison's own experience. 

"It is well known that the equality of the States in the Fed- 
eral Senate was a compromise between the large and the small 
States . . . the former claiming . . . the latter an equality 
in both, as a safeguard to the reserved sovereignty of the 
States," f 

Mr. Nicholas Gilman, delegate from New Hampshire, 
writes, September 18, to J. S. Gilman: 

"The important business of the Convention being closed, 
the Secretary set off this morning to present Congress with 
a report of their proceedings, which I hope (will come before 
the States) in the manner directed, but as some time must 
necessarily elapse before that can take place, I do myself the 
pleasure to transmit the enclosed papers for your private sat- 
isfaction, forbearing all comments upon the plan but that it is 
the best that (could meet the unanimous concurrence of the 
States in Convention) ; it was done by bargain and compro- 
mise, yet, notwithstanding its imperfections, on the adoption 
of it depends (in my feeble judgment) whether we shall be- 
come," etc. 

"He [B. Franklin] saw difficulties and objections, which 
might be urged by individual states against every scheme 
which had been proposed; and he was now, more than ever, 
convinced that the constitution which they were about to form, 

* No. 37 of "The Federalist," by Madison, 
t Madison, Letter of March, 1836. 



298 SECESSION AND CONSTITUTIONAL LIBERTY 

in order to be just and equal must be formed on the basis of 
compromise and mutual concession." * 

Mr. Charles Pinckney, justifying the proposed Constitution 
in the South Carolina legislature, January 16, 1788, said, upon 
the question of the proportionate influence of the states 
therein : 

"After much anxious discussion — for had the Convention 
separated without determining upon a plan, it would have 
been on this point — a compromise was effected," etc. 

"Mr. Dayton believed it would come to this, that when the 
question came to be discussed, and the rights of the small 
states maintained, the large States would threaten us with 
their power. The same threats had been heard in the old 
Congress, but they were laughed at, for the votes of the 
States were equal; they were heard in the Convention, but 
they were spurned at, for the votes were equal there also; 
the large States must be cautious here, for in this body too, 
the votes are equal. The gentleman had talked of a classi- 
fication of States as a novelty, but he would ask if that gen- 
tleman pretended to be wiser than the Constitution? Look 
through that instrument from beginning to end, and you will 
not find an article which is not founded on the presumption of 
a clashing of interests. Was developing the election in par- 
ticular circumstances in the House of Representatives intended 
for nothing? Was nothing meant by the provision of the 
Constitution, that no amendment should ever deprive the 
States of the equality of votes in this House? Yet it was that 
jealous caution which foresaw the necessity of guarding 
against the encroachments of large States. The States, what- 
ever was their relative magnitude, were equal under the old 
Confederation, and the small States gave up a part of their 
rights as a compromise for a better form of government and 
security; but they cautiously preserved their equal rights in 
the Senate and in the choice of a Chief Magistrate. The same 
voice that now addresses you made the solemn claim and 

* Franklin in the Convention, as reported by William Steele to Jona- 
than D. Steele, September, 1825. 



APPENDIX 20 299 

declared there was no safety in association unless the small 
states were protected here. The warning was taken and you 
find in that part, as in all others, a classification governs every 
line of the Constitution." * 

"The honorable gentleman from Maryland . . . has said, 
he was not surprised that those who had seats in the old 
Congress, should perplex themselves with the distinctions ; but 
he could tell that gentleman, that it was not in the old Con- 
gress he had learnt them, for there he had seen all the votes 
of the States equal, and had known the comparatively little 
State of Maryland controlling the will of the Ancient Domin- 
ion. It was in the Federal Convention that distinction was 
made and acknowledged; and he defied that member to do, 
what had been before requested of the honorable gentleman 
from Virginia,' viz., to open the Constitution, and point out 
a single article, if he could, that had not evidently been framed 
upon a presumption of diversity (he had almost said, adver- 
sity) of interest between the great and small States." f 

"If, in the new legislature, as in the old Congress, each 
had been equally represented, and each preserved an equal 
vote, the sacrifice of rights would have been equal. But when 
it was admitted that, in the National Legislature, the Rep- 
resentatives should be appointed according to the number of 
citizens, the sacrifice of rights was great, in proportion as the 
States were small. Thus Delaware, which had but one rep- 
resentative out of sixty-five, retained only one sixty-fifth part 
of the nation's authority; and Virginia, which had ten Rep- 
resentatives, obtained two-thirteenths. Wherefore, since each 
had previously enjoyed one-thirteenth, Delaware lost four- 
fifths of its power, and that of Virginia was doubled, so that 
Delaware, compared to Virginia, was reduced under the new 
establishment from equality to one-tenth. It was moreover 
evident, that the course of population would daily increase this 
decided superiority of the great States ... of course, if the 
whole power of the union had been expressly vested in the 
House of Representatives, the smaller States would never have 

* Jonathan Dayton of New Jersey, in U. S. Senate, November 24, 1803. 
t Jonathan Dayton, in U. S. Senate, November 29, 1803. 



3 oo SECESSION AND CONSTITUTIONAL LIBERTY 

adopted the Constitution. But in the Senate they retained an 
equal representation, and to the Senate was given a consid- 
erable share of those powers exercised by the old Congress. 
One important point however, that of making war, was di- 
vided between the Senate and House of Representatives . . . 
the legislative authority being thus disposed of . . . care was 
taken to preserve to the Senate a feeble share of the ancient 
executive power of Congress, by their negatives to their ap- 
pointments to office." * 

He then goes on to show how the manner of electing the 
President was a result of the same compromise between the 
large and small states. 

"My Plan was substantially adopted in the sequel except 
as to the Senate & giving more power to the Executive than 
I intended — the force of vote which the small and middling 
vStates had in the Convention prevented our obtaining a pro- 
portional representation in more than one branch & the great 
power given to the President was never intended to have been 
given to him while the Convention continued in that patient & 
coolly deliberative situation in which they had been for nearly 
the whole of the preceding five months of their session, nor 
was it until the last week or ten days that almost the whole of 
the Executive Department was altered — I can assure you as a 
fact that for more than Four months & a half out of Five 
The power of exclusively making treaties, appointing public 
Ministers & Judges of the Supreme Court was given to the 
Senate." f 

Mr. Gerry, answering, in the Massachusetts Ratifying Con- 
vention, the question why Georgia had three representatives, 
by the proposed Constitution, to Massachusetts' s eight, replied 

"that the apportionment was made not by any fixed principle, 
but by a compromise." 

* Gouverneur Morris to Lewis R. Morris, Dec. 10, 1803. 

f Charles Pinckney to J. Q. Adams, December 30, 1818, with his 
Draught for the Constitution. The latter part of this is noteworthy for 
its confirmation of Mr. Mason (v. pp. 304 et seq.), as to the state of the 
Convention. 






APPENDIX 20 301 

"Mr. Strong. There were large debates on this subject in 
the Convention. The Convention would have broke up if it 
had not been agreed to allow an equal representation in the 
Senate. It was an accommodation reported by a Com- 
mittee." 

"When the compromise took place on the subject of rep- 
resentation," etc.* 

"On the other hand the small states, seeing themselves em- 
braced by the Confederation upon equal terms, wished to re- 
tain the advantages they already possessed. The large states, 
on the contrary, thought it improper that Rhode Island and 
Delaware should enjoy an equal suffrage with themselves. . . . 
It became necessary therefore to compromise, or the Conven- 
tion must have dissolved without effecting anything." f 

"The truth is, the plan, in all its parts, was a plan of ac- 
commodation." % 

"Although it militates against every idea of just proportion 
that the little state of Rhode Island should have the same 
suffrage with Virginia, or the great commonwealth of Mas- 
sachusetts, yet the small states would not consent to confeder- 
ate without an equal voice in the formation of treaties. With- 
out the equality, they apprehended that their interest would 
be neglected or sacrificed in negotiations. This difficulty could 
not be got over. It arose from the unalterable nature of 
things. Every man was convinced of the inflexibility of the 
little states in this point. It therefore became necessary to 
give them as absolute equality in making treaties." § 

"It is a fact declared by the General Convention, and uni- 
versally understood, that the Constitution of the United States 
was the result of a spirit of amity and mutual concession. 
And it is well known that, under this influence, the smaller 
states were admitted to an equal representation in the Sen- 
ate . . . And that this branch of the Government was in- 
vested with great powers; for on the equal participation of 

* Luther Martin's Reply to "The Landholder," March 19, 1788. 
f Alexander Hamilton, in the New York Convention, June 20, 1788. 
% Hamilton, in New York Convention, June 23, 1788. 
§ Mr. Davie, in North Carolina Ratifying Convention, July 28, 1788. 



302 SECESSION AND CONSTITUTIONAL LIBERTY 

those powers, the sovereignty and political safety of the 
smaller States were deemed essentially to depend." * 

'At length the Committee of Detail brought forward their 
Resolution which gave to the larger States the same inequality 
in the Senate that they are now proposed to have in the House 
of Representatives — Virginia, Pennsylvania and Massachu- 
setts would have one half — all the officers and even the Presi- 
dent were to be chosen by the Legislature; so that these three 
States might have usurped the whole power . . . Threats 
were thrown out to compel the lesser States to confederate — 
They were told this would be the last opportunity that might 
offer to prevent a Dissolution of the Union; that once dis- 
solve that band which held us together and the lesser States 
had no security for their existence even for a moment." f 

"The protection of the small States against the ambition 
and influence of the larger members could only be effected 
by arming them with an equal power in one branch of the 
legislature. On a contemplation of this matter, we shall find 
that the jealousies of the states could not be reconciled any 
other way. The lesser states would never have concurred un- 
less this check had been given them, as a security for their 
political existence against the power and encroachments of the 
great states," $ 

"Mr. Chairman, I will state to the Committee the reasons 
upon which this officer was introduced. I had the honor to 
observe to the committee, before, the causes of the particular 
formation of the Senate — that it was owing, with other rea- 
sons, to the extreme jealousy of the lesser states of the power 
and influence of the larger members of the confederacy. It 
was in the Senate that the several political interests of the 
states were to be preserved, and where all their powers were 
to be perfectly balanced. The commercial jealousy between 
the Eastern and Southern States had a principal share in this 
business. It might happen, in important cases, that the voices 

* Washington's Message to House of Representatives, on Jay's Treaty, 
March 30, 1796. 

t Luther Martin before the Maryland House of Representatives, Nov. 
29, 1787. 

t Mr. Davie, in North Carolina Ratifying Convention, July 24, 1788. 



APPENDIX 20 303 

would be equally divided. Indecision might be dangerous and 
inconvenient to the public. It would then be necessary to 
have some person who should determine the question as impar- 
tially as possible. Had the Vice-President been taken from 
the representation of any of the states, the vote of that state 
would have been under local influence in the second . . ." * 

"The threatening contest, in the Convention of 1787 did not 
turn on the degree of power to be granted to the Federal 
Govt. : but on the rule by which the States should be rep- 
resented and vote in the Govt. : the smaller States insisting 
on the rule of equality in all respects; the larger on the rule 
of proportion to inhabitants and the Compromise which en- 
sued was that which established an equality in the Senate, and 
an inequality in the House of Representatives. The contests 
& compromises turning on the grant of power, tho' very im- 
portant in some instances, were knots of a less Gordian Char- 
acter." f 

"But when the organization of the respective branches of 
the legislature came under consideration, it was easy to be per- 
ceived that the eastern and southern states had distinct inter- 
ests . . . and that the large states were disposed to form a 
constitution, in which the smaller ones would be mere ap- 
pendages and satellites to the larger ones ... it was evident 
that it must be a matter of compromise and material conces- 
sion . . . After serious investigation, it was solemnly deter- 
mined . . . if . . . that offensive feature . . . could not be 
expunged ... we would secede from the convention, and, 
returning to our constituents inform them that no compact 
could be formed with the large states but one which would 
sacrifice our sovereignty and independence." % 

It is perhaps hardly necessary to quote further to estab- 
lish the fact of bargain, or compact, between the larger States 
and the smaller. There was also such between the Northern 
and Southern States. The two struggles became, in a sort, 
merged. 

* Mr. Davie, in North Carolina Ratifying Convention, July 25, 1788. 
t Madison to Martin Van Buren, May 13, 1828. 

$ Jonathan Dayton, as narrated in letter by William Steele to Jonathan 
D. Steele, September, 1825. 
1—20 



304 SECESSION AND CONSTITUTIONAL LIBERTY 

"As to the intention of the framers of the Constitution in 
the clause relating to 'the migration and importation of per- 
sons &c' the best key may be found in the case which produced 
it ... In the Convention the former States were anxious 
... to insert a provision for an immediate and absolute stop 
to the trade. The latter were not only averse to any interfer- 
ence on the subject; but solemnly declared that their constitu- 
ents would never accede to a constitution containing such an 
article. Out of this conflict grew the middle measure . . . 
Such was the tone of opposition in the States of S. Carolina 
& Georgia, & such the desire to gain their acquiescence in a 
prohibitory power, that on a question between the epochs of 
1800 & 1808 the States of N. Hampshire, Massatts. & Con- 
necticut (all the eastern States in the convention) ; joined in 
the vote for the latter, influenced however by the collateral 
motive of reconciling those particular States to the power 
over commerce & navigation; against which they felt, as did 
some other States, a very strong repugnance. The earnest- 
ness of S. Carolina & Georgia was further manifested by 
their insisting on the security in the V. article, against any 
amendment to the Constitution affecting the right reserved to 
them, & their uniting with the small States who insisted on a 
like security for their equality in the Senate." 20A * 

Mr. Charles Cotesworth Pinckney, who has been previously 
quoted to the effect that the Declaration of Independence re- 
sulted not in the several independency of the States but in 
their independence as amalgamated in one body, appears to 
have forgotten this doctrine in his speech of January, 1788, in 
the South Carolina Legislature, since he, in that, represents 
himself as entering into a bargain on behalf of his State 
with the gentlemen representing the other States; which could 
hardly have been done, had those States been already sub- 
ordinate parts of one power. Among other things, Mr. Pinck- 
ney said: 

"In conformity to this rule, joined to a spirit of conces- 
sion, we determined that representatives should be apportioned 
* Madison to Robert Walsh, November 27, 1819. 



APPENDIX 20 305 

among the several states, by adding to the whole number of 
free persons three-fifths of the slaves. We thus obtained a 
representation for our property ; and I confess I did not expect 
that we had conceded too much to the Eastern States, when 
they allowed us a representation. Reflect for a moment on 
the situation of the Eastern States . . . They can enjoy their 
independence without our assistance. If our government is 
to be founded on equal compact, what inducement can they 
possibly have to be united to us without having these privi- 
leges? . . . The general then said he would make a few ob- 
servations on the objections which the gentleman had thrown 
out on the restrictions that might be laid on the African trade 
after the year 1808. On this point your delegates had to 
contend with the religious and political prejudices of the 
Eastern and Middle States, and with the interested and incon- 
sistent opinion of Virginia, who was warmly opposed to our 
importing more slaves . . . 'Show some period,' said the 
members from the Eastern States, 'when it may be in our 
power to put a stop, if we please, to the importation . . . and 
we will endeavour ... to restrain the religious and political 
prejudices of our people on this subject.' The Middle States 
and Virginia made us no such proposition ; they were for an 
immediate and total prohibition ... In short ... we have 
made the best terms for the security of this species of prop- 
erty it was in our power to make. We would have made them 
better if we could ; but, on the whole, I do not think them bad." 

Mr. Mason shows the other side of this bargain, in a letter 
to Thomas Jefferson, May 26, 1788: 

"I was under the necessity of refusing my Signature, as 
one of the Virginia Delegates; and drew up some general ob- 
jections; which I intended to offer, by way of Protest; but 
was discouraged from doing so, by the precipitate, & intemper- 
ate, not to say indecent Manner, in which the Business was 
conducted, during the last week of the Convention, after the 
Patrons of this new Plan found they had a decided Majority 
in their Favour; which was obtained by a Compromise be- 
tween the Eastern & the two Southern States, to permit the 



3 o6 SECESSION AND CONSTITUTIONAL LIBERTY 

latter to continue the Importation of Slaves for twenty odd 
Years; a more favourite object with them, than the Liberty 
and Happiness of the People." 

Again, in the Virginia Ratifying Convention, June 21, 1788, 
Mr. Mason said : 

"With respect to commerce and navigation ... I will give 
you to the best of my recollection, the history of that affair. 
This business was discussed at Philadelphia for four months, 
during which time the subject of commerce and navigation 
was often under consideration; and I assert that eight states 
out of twelve, for more than three months, voted for requir- 
ing two thirds of the members present in each house to pass 
commercial and navigation laws. True it is, that afterwards 
it was carried by a majority, as it stands. If I am right, there 
was a great majority for requiring two thirds of the states in 
this business, till a compromise took place between the north- 
ern and southern states; the northern states agreeing to the 
temporary importation of slaves, and the southern states con- 
ceding in return, that navigation and commercial laws should 
be on the footing on which they now stand. If I am mistaken, 
let me be put right . . . The Newfoundland fisheries will re- 
quire that kind of security which we are now in want of. The 
eastern states therefore agreed at length, that treaties should 
require the consent of two-thirds of the members present in 
the senate." 

Among the Jefferson papers, and in the writings of Jef- 
ferson, is found a memorandum as given by Mr. Mason, Sep- 
tember 30, 1792, to the same effect, but in more particular de- 
tail: 

'The Constn. as agreed to till a fortnight before the con- 
vention rose was such a one as he wd. have set his hand & 
heart to. 1. The presidt. was to be elected for 7 years, then 
ineligible for 7 more. 2. rotation in the senate. 3. a vote of 
2 /z in the legislature on particular subjects, & expressly on 
that of navigation, the 3 new Engd. states were constantly 
with us in all questions (Rho. isld not there, & N. York sel- 



APPENDIX 20 307 

dom) so that it was these 3 states with the 5 Southern ones 
against Pennsva. Jersey & Delaware, with respect to the 
importn. of slaves it was left to Congress. This disturbed the 
two Southernmost states, who knew that Congress would im- 
mediately suppress the importn. of slaves, those 2 states 
therefore struck up a bargain with the 3 N. Engld. states if 
they would join to admit slaves for some years, the 2 South- 
ernmost states wd. join in changing the clause which required 
2 /z of the legislature in any vote, it was done, these articles 
were changed accordingly, & from that moment the two S. 
States and the 3 Northern ones joined Pen. Jers. & Del. & 
made the majority 8. to 3, against us instead of 8. to 3. for 
us as it had been thro' the whole Convention, under this coali- 
tion the great principles of the Constn. were changed in the 
last days of the Convention." 

"Besides our Labours required the unanimous Consent of 
the States in Convention to Insure success from abroad. We 
were therefore in prudence obliged to Accommodate ourselves 
to Interests not only opposite but in some measure as you ob- 
serve, Clashing. I will just mention one Object, and that an 
Important One, in which there appeared a Clashing of In- 
terests — I mean Commerce — When we withdrew from G. 
Britain the Eastern States were deprived of a benefit they long 
enjoyed on a large participation of the Carrying Trade; with 
many other benefits that they had in Common with the British 
. . . What then did Our Brethren of the Eastern States gain 
by a long and bloody Contest ? Why nothing but the honor of 
calling themselves Independent States. Let us turn Our Eyes 
for a moment to the Southern or Staple States . . . Thus 
Circumstanced we were obliged to Accommodate ourselves to 
the Interests of the Whole; and Our System should be con- 
sidered as the result of a Spirit of Accommodation, and not 
as the most perfect System, that under the Circumstances 
could be devised by the Convention." * 

"Mr. Spaight answered, that there was a contest between 
the Northern and Southern States; that the Southern States, 
whose principal support depended on the labor of slaves, 

* Pierce Butler, of South Carolina, to Weedon Butler, May 5, 1788. 



308 SECESSION AND CONSTITUTIONAL- LIBERTY 

would not consent to the desire of the Northern States to ex- 
clude the importation of slaves absolutely; that South Carolina 
and Georgia insisted on this clause, as they were now in want 
of hands to cultivate their lands . . . Mr. Spaight further ex- 
plained the clause. That the limitation of this trade to the 
term of twenty years was a compromise between the Eastern 
States and the Southern States. . . ." * 

"When you are pleased to lay this plan before the General 
Assembly we entreat that you will do us the justice to assure 
that honorable Body that no exertions have been wanting on 
our part to guard and promote the particular interest of North 
Carolina [Here follow reasons by which North Carolina 
benefits] . . . The Southern States have also a much better 
Security for the Return of Slaves who might endeavour to 
Escape than they had under the original Confederation. . . . 
While we were taking so much care to prevent ourselves from 
being overreached ... it is not to be supposed that our 
Northern Brethren were Inattentive to their particular Inter- 
est. A navigation Act or the power to regulate Commerce 
in the Hands of the National Government ... is the desir- 
able weight that is thrown into the Northern scale. This 
is what the Southern States have given in Exchange for the 
advantages we mentioned above. . . . l ' f 

Another compromise was in regard to the Presidential of- 
fice. 

"To this adjustment [in regard to election of President] 
which was brought about by compromise between the States," 
etc. X 

"The compromise on the subject of the Presidential elec- 
tion, which has always been binding in honor . . . Hence it 
has happened, from year to year, that attempts have been 
made by certain States, to alter the Constitution in the subject 
of the Presidential election, notwithstanding this election is 
matter of compromise and compact between the States, with- 

* Debates in North Carolina Ratifying Convention, July 26, 1788. 
f North Carolina Delegates to Govr. Caswell, September 18, 1787. 
t Rufus King (delegate of Massachusetts in the Convention) in Senate, 
March 18, 1824. 



APPENDIX 20 309 

out which no Constitution or Union could have been 
formed/' * 

"For this reason, measures which may be employed in the 
several States, under regulations and provisions of simple and 
single sovereignties could not be adopted in the balanced sys- 
tem of the Constitution of the United States — a compact be- 
tween the States." f 

"As the Constitution stands, and is regarded as the result of 
a compromise between the larger and smaller States, giving to 
the latter the advantage in selecting a President from the 
candidates, in consideration of the advantage possessed by the 
former in selecting the candidates from the people," etc. X 

"The part of the arrangement which casts the eventual ap- 
pointment [of President] on the House of Rep. voting by 
States, was, as you presume, an accommodation to the anxiety 
of the smaller States for their sovereign equality, and to the 
jealousy of the larger towards the cumulative functions of 
the Senate." § 

"The two subjects, the structure of the Govt, and the ques- 
tion of power entrusted to it, were more or less inseparable in 
the minds of all, as depending a good deal, the one on the 
other, after the compromise which gave the small States an 
equality in one branch of the Legislature, and the large States 
an inequality in the other branch." || 

"In order that the committee may understand clearly the 
principles on which the general Convention acted, I think it 
necessary to explain some preliminary circumstances. Sir, the 
natural situation of this country seems to divide its interests 
into different classes. There are navigating and non-navi- 
gating states. The Northern are properly navigating states : 
the Southern appear to possess neither the means nor the spirit 
of navigation. This difference of situation naturally produces 
a dissimilarity of interests and views respecting foreign com- 
merce. It was the interest of the Northern States that there 

* Ruf us King, in the Senate. 

t Ibid., March 23, 1824. 

t Madison to Henry Lee, January 14, 1825. 

§ Madison to George Hay, August 23, 1823. 

|| Madison to Theodore Sedge wick, Jr., February 12, 183 1. 



3io SECESSION AND CONSTITUTIONAL LIBERTY 

should be no restraints on their navigation, and they should 
have full power, by a majority in Congress, to make commer- 
cial regulations in favor of their own, and in restraint of the 
navigation of foreigners. The Southern States wished to im- 
pose a restraint on the Northern, by requiring that two thirds 
in Congress should be requisite to pass an act in regulation of 
commerce. They were apprehensive that the restraints of a 
navigation law would discourage foreigners, and, by obliging 
them to employ the shipping of the Northern States, would 
probably enhance their freight. This being the case, they 
insisted strenuously on having this provision ingrafted in the 
Constitution; and the Northern States were as anxious in op- 
posing it. On the other hand, the small states, seeing them- 
selves embraced by the Confederation upon equal terms, wished 
to retain the advantages which they already possessed. The 
large states, on the contrary, thought it improper that Rhode 
Island and Delaware should enjoy an equal suffrage with 
themselves. From these sources a delicate and difficult con- 
test arose. It became necessary, therefore, to compromise, 
or the Convention must have dissolved without effecting any- 
thing. Would it have been wise and prudent in that body, in 
this critical situation, to have deserted their country? No. 
Every man who hears me, every wise man in the United States, 
would have condemned them. The Convention were obliged 
to appoint a committee for accommodation. In this commit- 
tee, the arrangement was formed as it now stands, and their 
report was accepted. It was a delicate point, and it was neces- 
sary that all parties should be indulged. Gentlemen will see 
that, if there had not been an unanimity, nothing could have 
been done ; for the Convention had not power to establish, but 
only to recommend, a government. Any other system would 
have been impracticable. Let a convention be called to-mor- 
row; let them meet twenty times, — nay, twenty thousand 
times; they will have the same difficulties to encounter, the 
same clashing interests to reconcile." * 

"I only rise to state a fact with respect to the motives which 
operated in the general Convention. I had the honor to state 

* Hamilton, in New York Ratifying Convention, June 20, 1788. 



APPENDIX 20 3" 

to the committee the diversity of interests which prevailed 
between the navigating and non-navigating, the large and the 
small states, and the influence which those states had upon the 
conduct of each. It is true, a difference did take place between 
the large and the small states, the latter insisting on equal 
advantages in the House of Representatives. Some private 
business calling me to New York, I left the Convention for a 
few days : on my return, I found a plan, reported by the com- 
mittee of details; and soon after, a motion was made to in- 
crease the number of representatives. On this occasion, the 
members rose from one side and the other, and declared that 
the plan reported was entirely a work of accommodation, and 
that to make any alterations in it would destroy the Consti- 
tution. I discovered that several of the states, particularly 
New Hampshire, Connecticut, and New Jersey, thought it 
would be difficult to send a great number of delegates from 
the extremes of the continent to the national government : they 
apprehended their constituents would be displeased with a very 
expensive government ; and they considered it as a formidable 
objection. After some debate on this motion, it was with- 
drawn. Many of the facts stated by the gentleman and my- 
self are not substantially different. The truth is, the plan, in 
all its parts, was a plan of accommodation." * 

"But, my friends, expelling the enemy was only half our 
work. To erect a government, which should secure the ad- 
vantages, was an object equally important. The defects of our 
old confederation were deeply felt. But, to devise, and per- 
suade the states to adopt a constitution, which should har- 
monize the jarring interests, habits, and wishes of so many 
states, peopled from different nations, was truly an Hercu- 
lean task. It was attempted, formed, and accepted." f 

These statements of Delegates (and others) show the uni- 
versal and consistent habit of the time of thinking, speaking, 
and acting in terms of the States. 

* Hamilton, in N. Y. Ratifying Conv., June 23, 1788. 

t Samuel Thacher, Oration, July 4, 1796, p. 16; Boston, 1796. 



312 SECESSION AND CONSTITUTIONAL LIBERTY 

APPENDIX 20A 

{Page 304) 

Mr. Lincoln, trying to prove that the Democratic Party 
were endeavouring to reopen the slave trade, said : 

"I have recently seen a letter of Judge Douglas' in which 
... he endeavors to make a distinction between the two. He 
says he is unalterably opposed to the repeal of the laws against 
the African slave trade. And why? He . . . seeks to give a 
reason that would not apply to his popular sovereignty in the 
Territories. What is that reason? The abolition of the Afri- 
can slave-trade is a compromise of the Constitution.' I deny it. 
There is no truth in the proposition that the African slave 
trade is a compromise of the Constitution. No man can put 
his finger on anything in the Constitution, or on the line of 
history, which shows it. It is mere barren assertion, made 
simply for the purpose of "etc., etc." . . . Compromise! 
What word of compromise was there about it. Why the pub- 
lic sense was then in favor of the abolition of the slave trade ; 
but there was at the time a very great Commercial interest 
involved in it and extensive capital in that branch of trade. 
There were doubtless the incipient stages of improvement in 
the South in the way of farming, dependent on the slave-trade, 
and they made a proposition to Congress to abolish the trade 
after allowing it twenty years, a sufficient time for the capital 
and commerce engaged in it to be transferred to other chan- 
nels. They made no provision that it should be abolished in 
twenty years ; I do not doubt that they expected it would be ; 
but they made no bargain about it ... I repeat there is noth- 
ing in the history of those times in favor of that matter be- 
ing a compromise of the Constitution." * 

Gouverneur Morris said, in relation to the clause relating 
to the slave trade : 

♦Lincoln, Speech at Columbus, 1859. 



APPENDIX 20 A 313 

"These things form a bargain among the Northern and 
Southern States." 

"This [the 1808 prohibition] was one of the conspicuous 
and important compromises of the Constitution." * 

Curiously enough, as it may seem to those who have read 
the history of that time only as written in this, denunciation 
of slavery came from the South, and more particularly from 
Virginia ; and Northern opposition to it was avowedly based 
upon the political motives of representation and taxation. Its 
condonation was more particularly the part of New England. 

Martin (of Maryland) said: 

"Slaves weakened the union which the other parts were 
bound to protect; the privilege of importing them was there- 
fore unreasonable. Such a feature in the constitution was 
inconsistent with the principles of the revolution, and dishon- 
orable to the American character." 

"For my part were it practicable to put an end to the im- 
portation of slaves immediately, it would give me the greatest 
pleasure ; for it certainly is a trade utterly inconsistent with 
the rights of humanity, and under which great cruelties have 
been exercised. When the entire abolition of slavery takes 
place, it will be an event which must be pleasing to every 
generous mind." f 

"Mr. George Mason (of Virginia). Mr. Chairman, this 
is a fatal section, which has created more dangers than any 
other. The first clause allows the importation of slaves for 
twenty years. Under the royal government, this evil was 
looked upon as a great oppression, and many attempts were 
made to prevent it ; but the interest of the African merchants 
prevented its prohibition. No sooner did the revolution take 
place, than it was thought of. It was one of the great causes 
of our separation from Great Britain. 20Al Its exclusion has 
been a principal object of this state, and most of the states 
of the Union. The augmentation of slaves weakens the states; 

*Max Farrand, "The Framing of the Constitution," p. 150; New 
Haven, 1913. 

t Iredell, in North Carolina Ratifying Convention. 



314 SECESSION AND CONSTITUTIONAL LIBERTY 

and such a trade is diabolical in itself, and disgraceful to 
mankind ; yet, by this Constitution, it is continued for twenty 
years. As much as I value a union of all the states, I would 
not admit the Southern States into the Union unless they agree 
to the discontinuance of this disgraceful trade, because it 
would bring weakness, and not strength to the Union. And, 
though this infamous traffic be continued, we have no security 
for the property of that kind which we have already. There 
is no clause in this Constitution to secure it; for they may 
lay such a tax. as will amount to manumission. And should 
the government be amended, still this detestable kind of com- 
merce cannot be discontinued till after the expiration of twenty 
years ; for the 5th article, which provides for amendments, ex- 
pressly excepts this clause. I have ever looked upon this as 
a most disgraceful thing to America. I cannot express my 
detestation of it. Yet they have not secured us the property 
of the slaves we have already. So that 'they have done what 
they ought not to have done, and have left undone what they 
ought to have done/ " * 

"This government does not intend our domestic safety. It 
authorizes the importation of slaves for twenty odd years, and 
thus continues upon us that nefarious trade." f 

In the Federal Convention, August 22, 1787, Col. Mason 
was equally emphatic. 

"This infernal traffic originated in the avarice of British 
merchants. The British government constantly checked the 
attempts of Virginia to put a stop to it . . . Maryland and 
Virginia had already prohibited the importation of slaves ex- 
pressly. North Carolina had done the same in substance. . . . 
He lamented that some of our eastern brethren had, from a 
lust of gain, embarked in this nefarious traffic," etc. 

"Mr. Tyler warmly enlarged on the impolicy, iniquity, and 
disgracefulness of this wicked traffic. He thought the rea- 
sons urged by gentlemen in defence of it were inconclusive and 
ill founded. It was one cause of the complaints against Brit- 



* Virginia Ratifying Convention. 

t Mason, in Virginia Ratifying Convention. 



APPENDIX 20A 315 

ish tyranny, that this trade was permitted. The revolution 
had put a period to it; but now it was to be revived. He 
thought nothing could justify it. . . . His earnest desire 
was, that it should be handed down to posterity that he had 
opposed this wicked clause." * 

"Another thing will contribute to bring this event about. 
Slavery is detested. We feel its fatal effects — we deplore it 
with all the pity of humanity. Let all these considerations, at 
some future period, press with full force on the minds of Con- 
gress . . . May they not think that these call for the abolition 
of slavery? ... As much as I deplore slavery, I see that pru- 
dence forbids its abolition. I deny that the general govern- 
ment ought to set them free, because a decided majority of 
the states have not the ties of sympathy and fellow-feeling 
for those whose interests would be affected by their emanci- 
pation. The majority of Congress is to the North, and the 
slaves are to the South ... I repeat again, that it would re- 
joice my very soul that every one of my fellow-beings was 
emancipated . . . But is it practicable by any human means, 
to liberate them without producing the most dreadful . . . 
consequences ?" t 

"The honorable gentleman [Mr. Henry], and some others 
have insisted that the abolition of slavery will result from 
it, and at the same time have complained that it encourages 
its continuance ... I hope there is none here who, consid- 
ering the subject in the calm light of philosophy, will advance 
an objection dishonorable to Virginia — that, at the moment 
they are securing the rights of their citizens, an objection is 
started that there is a spark of hope that those unfortunate 
men now held in bondage may, by the operation of the general 
government, be made free. But if any gentleman be terri- 
fied by this apprehension, let him read the system . . . Where 
is the part that has a tendency to the abolition of slavery?" 
etc. X 

* Virginia Ratifying Convention. 

t Patrick Henry, in Virginia Ratifying Convention. 

i Govr. Randolph, in Virginia Ratifying Convention. 



316 SECESSION AND CONSTITUTIONAL LIBERTY 

"They tell us that they see a progressive danger of bring- 
ing about emancipation. The principle has begun since the 
revolution. Let us do what we will, it will come round. Sla- 
very has been the foundation of that impiety and dissipation 
which have been so much disseminated among our country- 
men. If it were totally abolished, it would do much good." * 

"Means were used (by the British) to allure from their 
masters a species of property, which unfortunately constitutes 
the most valuable portion of the wealth of the southern 
states." f 

"It was the policy of this country, sir, from an early period 
of colonization, down to the Revolution, to encourage an im- 
portation of slaves for the purposes which (if conjecture may 
be indulged) had been far better answered without their as- 
sistance. That this inhuman policy was a disgrace to the Col- 
ony, a dishonor to the Legislature, and a scandal to human 
nature, we need not at this enlightened period labor to prove. 

"The generous mind, that has adequate ideas of the inher- 
ent rights of mankind and knows the value of them, must 
feel its indignation rise against the shameful traffic that intro- 
duces slavery into a country which seems to have been de- 
signed by providence as an asylum for those whom the arm 
of power had persecuted," etc. X 

Mr. Jefferson's opinion, expressed in the first draft of the 
Declaration of Independence, and suppressed in order to avoid 
offence to certain of the States, both of the North and South, 
is well known. Ten years after, he writes as follows : 

"I conjecture there are six hundred and fifty thousand ne- 
groes in the five southernmost States . . . The disposition to 
emancipate them is strongest in Virginia. Those who desire 
it, form, as yet, the minority of the whole State, but it bears 
a respectable portion to the whole in numbers and weight of 
character, and it is continually recruiting by the addition of 

♦Johnson, in Virginia Ratifying Convention. 

t Marshall, "Life of Washington," Vol. IV, p. 215. 

X William Pinckney, Speech in Maryland Assembly, 1788. 



APPENDIX 20A 317 

nearly the whole of the young men as fast as they come into 
public life/' 20A2 * 

"But, said Mr. Daniel, ... the words of the clause, 'migra- 
tion or importation/ were, . . . and he believed, if they were 
to seek the reason why this clause was inserted in the Con- 
stitution, they should find, that the Southern States insisted 
upon it, not only to secure their right of continuing the abom- 
inable slave trade, but that they might also have it in their 
power to encourage and effect the settlement of their back 
lands/' f 

"Mr. Madison's son is a member of the Assembly. . . . 
This young man . . . had the humanity and the courage . . . 
to propose a general emancipation of the slaves, at the begin- 
ning of this year, 1786: Mr. Jefferson's absence at Paris, and 
the situation of Mr. Wythe, as one of the judges of the State, 
which prevented them from lending their powerful support, 
occasioned it to miscarry for the moment, but there is every 
reason to suppose that the proposition will be successfully re- 
newed. As it is, the assembly have passed a law declaring that 
there shall be no more slaves in the Republic but those ex- 
isting the first day of the session of 1785-6, and the descend- 
ants of female slaves." % 

31 July, 1772. The Humble Address of the House of Bur- 
gesses of Virginia to George the Third : Praying for the re- 
moval of all restraints from Governors of the said Colony 
"which inhibit their assenting to such laws as might check so 
very pernicious a commerce as the slave trade." 
Alfred Morrison MSS. In App. to 9th Report of the His- 
torical MSS. Commission, pt. 2 :p. 480. 

One of the first acts of the Virginia Convention which met 
August 1774, was a resolution to import "no more slaves, nor 

* Answers to questions propounded by M. de Meusnier, January 24, 
1786. 

f Debates in House of Delegates of Virginia, December 19, 1798. 

% Chastellux, "Travels in North- America, 1 780-1 782," note by Trans- 
lator, Vol. II, pp. 335-336; L., 1787. 



318 SECESSION AND CONSTITUTIONAL LIBERTY 

British goods, nor tea." In 1778 a more formal act was 
passed, prohibiting importation of slaves from any quarter.* 
Delegates from even the two Southern States which de- 
sired the continuation of the slave trade, uttered personal opin- 
ions against it. 

". . . Georgia was decided on this point [against meddling 
of the general government with slavery]. If left to herself, 
she may probably put a stop to the evil." f 

"If the Southern states were let alone, they will probably 
of themselves stop importations (of slaves). He would him- 
self, as a citizen of South Carolina, vote for it." J 

Who, reading these words of the Virginians who took part 
in making the Constitution, can deny the truth of those of a 
Virginian of the sixties? § 

Turning now to contemporary New England action and 
opinion: Mr. Gerry (of Massachusetts) "thought we had 
nothing to do with the conduct of the states as to slaves." || 

"If we ratify the Constitution, shall we do any thing by 
our act to hold the blacks in slavery? or shall we become the 
partakers of other men's sins? I think, neither of them. Each 
state is sovereign and independent to a certain degree, and 
the states have a right, and they will regulate their own in- 
ternal affairs as to themselves appears proper ; and shall we re- 
fuse to eat, or to drink, or to be united, with those who do not 
think, or act, just as we do? Surely not. We are not in this 
case, partakers of other men's sins," etc.fl 

Mr. Sherman (of Connecticut) "disapproved of the slave 
trade ; yet, as the states were now possessed of the right to im- 
port slaves, as the public good did not require it to be taken 

*.See also the Resolutions of Virginia on Colonization, December 23, 
1816, in Ames's State Documents; and Cicero W. Harris, "The Sectional 
Struggle," p. 198; Philadelphia, 1902. 
. f Mr. Baldwin (of Georgia) in Federal Convention, August 22, 1787. 

$ Charles Pinckney, in Federal Convention, August 22, 1787. 

§ Vide Bagby, p. in. 

|| Speech in Federal Convention, August 22, 1787. 

ITGenL Heath, in Ratifying Convention of Massachusetts. 



APPENDIX 20A 319 

from them, and as it was as expedient to have as few objec- 
tions as possible to the proposed scheme of government, he 
thought it best to leave the matter as we find it. He observed 
that the abolition of slavery seemed to be going on in the 
United States, and that the good sense of the several states 
would probably by degrees complete it. He urged on the 
Convention the necessity of despatching its business." * 

Mr, Ellsworth (of Connecticut) "was for leaving the clause 
as it stands. Let every state import what it pleases. The 
morality or wisdom of slavery are considerations belonging 
to the states themselves. What enriches a part enriches the 
whole, and the states are the best judges of their particular 
interest. The old Confederation had not meddled with this 
point; and he did not see any greater necessity for bringing 
it within the policy of the new one." f 

The motion to extend the period allowed for importation of 
slaves from 1800 to 1808, made by C. C. Pinckney, was sec- 
onded by Gorham (of Massachusetts), and was carried by the 
vote of Massachusetts, Connecticut, and New Hampshire 
(with Georgia and South Carolina). 

When it is also remembered that the Revolution might, with 
a little paradox, be said to have arisen with the, so-called, "mo- 
lasses act," passed in 1733 to restrain New England's activi- 
ties in the slave trade in the interest of English merchants in 
that trade, who, reading these words of the New Englanders 
who took part in making the Constitution, in the light of their 
bargain with Georgia and South Carolina which fastened 
slavery and the tariff upon the United States, reading their 
later protests (not always made without avowedly political 
reasons) — when on the annexation of Texas, Massachusetts 
"Resolved, That the annexation of a large slaveholding terri- 
tory ... is ... a deliberate assault upon the compromises 
of the Constitution." $ 

When she 

* In the Federal Convention, August 22, 1787. 
t Ibid., August 21, 1787. 
X March 26, 1845. 
1—21 



320 SECESSION AND CONSTITUTIONAL LIBERTY 

"Resolved, That our attention is directed anew to the 
'wrong and enormity ' of slavery . . . and that we are im- 
pressed with the unalterable conviction, that a regard for the 
fair fame of our country, for the principles of morals, and for 
that righteousness which exalteth a nation, sanctions and 
requires all constitutional efforts for the destruction of the 
unjust influence of the slave power, and for the abolition of 
slavery within the limits of the United States." * 

When Vermont 

"Resolved, That this legislature views with alarm . . . the 
attempt of . . . Missouri to obtain admission into the Union 
. . . under u, constitution which . . . contains provisions to 
prevent freemen of the United States from . . . settling in 
Missouri, or* account of their origin, colour, and features . . . 
etc." f 

When New England generally passed "personal liberty" 
laws, when rifles were bought by her philosophers and "solid 
men" for John Brown's raid, etc., etc.; who, knowing these 
things and familiar with historical continuity, can avoid think- 
ing of Mr. Webster's characterization of his fellow citizens, 
in his letter of October 14, 1826, to Mr. Haddock: 

"In regard to the moral character generally of our ancestors, 
the settlers of New England, my opinion is that they pos- 
sessed all the Christian virtues but charity; and they seem 
never to have doubted that they possessed that also. And 
nobody could accuse their system or their practice but of one 
vice, and that was religious hypocrisy, of which they had an 
infusion without ever being sensible of it. 

"It necessarily resulted from that disposition which they 
cherished, of subjecting men's external conduct, in all particu- 
lars, to the influence and government of express rule and pre- 
cept, either of church or state. That always makes hypocrites 
and formalists; it leads men to rely on mint and cummin." 

♦Massachusetts, on the Mexican War. Acts and Resolves of Massa- 
chusetts, 1846-1848. 

tOn the Missou* ''^•institution, November 16, 1829. 



APPENDIX 2o' A2 fil 

APPENDIX 20A 1 
(Page 313) 

"Slaves as these unfortunate black people are, and dull as 
all men are from slavery, must they not a little suspect the 
offer of freedom from that very nation which has sold them 
to their present masters? From that nation, one of whose 
causes of quarrel with those masters, is their refusal to deal 
any more in that inhuman traffic ? An offer of freedom from 
England, would come rather oddly, shipped to them in an 
African vessel, which is refused an entry into the ports of 
Virginia or Carolina, with a cargo of three hundred Angola 
negroes. It would be curious to see the Guinea captain at- 
tempting at the same instant to publish his proclamation of lib- 
erty, and to advertise his sale of slaves." * 



APPENDIX 20 A2 
(Page 317) 

To the same purport is the testimony of the Marquis de 
Chastellux : 

"II faut aussi rendre cette justice aux Virginiens, c'est que 
plusieurs d'entre eux traitent leurs negres avec beaucoup d'hu- 
manite. II faut encore leur en rendre une autre, qui leur est 
plus honorable, c'est qu'en general ils paroissent affliges d'en 
avoir, et qu'ils parlent sans cesse d'abolir Tesclavage et de 
chercher un autre moyen de faire valoir leurs terres. II est 
vrai que cette opinion, presq'universellement etablie, est in- 
spired par differens motifs. Les Philosophes, et les jeunes 
gens qui sont la plupart eleves dans les principes de la bonne 
philosophic, n'evisagent que la justice et les droits de l'hu- 
manite. Les peres de famille et ceux qui sont occupes princi- 
palement de leurs interets, se plaignent que leurs negres leur 
coutent bien cher a entretenir; que le travail qu'on en exige, 

* Burke's Speech on Conciliation of the Colonies. 



322 SECESSION AND CONSTITUTIONAL LIBERTY 

n'est ni aussi fructueux ni a. aussi bon marche que celui des 
journaliers ou des domestiques blancs; enfin que les epidemies, 
qui sont tres communes, rendent leur propriete tres precaire et 
leur revenu tres incertain," etc.* 

The entire passage is well worth reading, as showing the 
views of a humane and intelligent man who, perceiving the 
evil, was also able to perceive the very great difficulties to be 
overcome in its removal, — in brief, truly a philanthropist; 
neither a hypocrite nor fanatic. 

"The bill on the subject of slaves, was a mere digest of the 
existing laws respecting them, without any intimation of a 
plan for a future and general emancipation. It was thought 
better that this should be kept back, and attempted only by way 
of amendment, whenever the bill should be brought on. The 
principles of the amendment, however, were agreed on, that 
is to say, the freedom of all born after a certain day, and de- 
portation at a proper age. But it was found that the public 
mind would not yet bear the proposition, nor will it bear it 
even at this day. Yet the day is not distant when it must bear 
and adopt it, or worse will follow. Nothing is more certainly 
written in the book of fate, than that these people are to be 
free ; nor is it less certain that the two races, equally free, can- 
not live in the same government. Nature, habit, opinion have 
drawn indelible lines of distinction between them." f 



APPENDIX 21 

{Page 55) 

It is not perhaps wholly insignificant that in the Declara- 
tion of Independence the "u" in "united" is uncapitalized ; i. e., 
"the united States." 

"May the United States be more and more united." X 

* "Voyages," Vol. II, pp. 145, 146; P., 1786. 
t Jefferson's "Autobiography," "Works," Vol. I, pp. 48-49. 
t Second toast at 4th of July banquet at Kennebunk, Me. ; Jenks's Ga- 
zette, Portland, July 16, '98. 



APPENDIX 21 323 

"But still compelled to fight against the flesh and sin, to the 
Thirteen United States, who, notwithstanding they have ac- 
quired liberty and independence, are under the necessity 
of employing all their force to combat a formidable 
power . . ." * 

The Declaration of Independence says : 

"The unanimous Declaration of the thirteen united States 
of America . . . That these United Colonies are, and of 
Right ought to be, Free and Independent States," 

The preamble to the Ordinance for Government of North- 
west Territory says: "the basis whereon these republics . . . 
are erected." 

"Whereas his Britannic majesty, in conjunction with the 
lords and commons of Great Britain, has, by a late act of par- 
liament, excluded the inhabitants of these United Colonies 
from the protection of his crown . . . and it is necessary that 
the exercise of every kind of authority under the said crown, 
should be totally suppressed, and all the powers of government 
exerted, under the authority of the people of the colonies . . . 
therefore resolved," etc. f 

"Resolved, That it be recommended to the respective assem- 
blies and conventions of the United Colonies, where no gov- 
ernment sufficient to the exigencies of their affairs hath been 
hitherto established, to adopt such government, as shall in the 
opinion of the representatives of the people, best conduce to 
the happiness and safety of their constituents in particular, 
and America in general." X 

Here, prior to the Declaration, the term is used in a context 
unsusceptible of misconstruction to indicate the people of the 
colonies severally. 

"Resolved, That in all continental commissions, and other 
instruments, where, heretofore, the words 'United Colonies' 

* Chastellux, "Travels in North-America, 1780-1782," Vol. II, p. 228. 
f Journals of Congress, May 15, 1776. Preamble to Resolution of the 
ioth inst. 

$ Journals of Congress, May 10, 1776. 



324 SECESSION AND CONSTITUTIONAL LIBERTY 

have been used, the stile be altered, for the future, to the 
'United States'." * 

"That the commander in chief of the forces of these states 
in the several departments, be directed to give positive orders," 
etc. f 

"I swear ... to be true to the United States of Amer- 
ica, and to serve them honestly and faithfully against all their 
enemies/ ' X 

"Brothers of the Six-Nations . . . We, the delegates of the 
thirteen United States of America, are extremely pleased to 
see you." § 

"Whereas the war in which the United States are engaged 
with Great Britain, has not only been prolonged . . . Re- 
solved, That it be recommended to all the United States . . . 
to appoint a day of . . . fasting," etc. || 

"Resolved, That general Washington shall be, and he is 
hereby, vested with . . . powers to raise . . . from any or 
all of these United States, 16 battalions." etc. fl 

"Resolved, That none of the said articles ... be exported 
from any of these United States . . . And it is . . . recom- 
mended to the executive powers of the several United States, 
to see that this resolution be strictly complied with." ** 

"Resolved, That a committee ... be appointed to prepare 
a circular letter to the several United States," etc. ff 

"Resolved, That the president write to the executive powers 
of each of the thirteen United States, requesting them," etc. It 

"The United States of America acknowledge themselves to 
be indebted." §§ 

"Resolved, That the thanks of Congress in their own name, 
and in behalf of the inhabitants of the thirteen United States 

♦Journals of Congress, September 9, 1776. 
t Ibid., September 19, 1776. 

t Oath of Continental soldiers, Journals of Congress, Sept. 20, 1776. 
§ Journals of Congress, December 7, 1776. 
\\Ibid., December 11, 1776. . 
tf Ibid., December 27, 1776. 
** Ibid., December 27, 1776. 
tt Ibid., December 28, 1776. 
tt Ibid., May 9, 1777. 

§§ Form of bank note for prize in U. S. Lottery, Journals of Congress, 
May 14, 1777. 



APPENDIX 21 325 

be presented to major-general Gates . . . and the main army 
. . . reduced to the necessity of surrendering themselves upon 
terms honourable and advantageous to these states . . " * 

"Resolved, That the commissioners at the courts of France 
and Spain, be directed to exert their utmost endeavours to ob- 
tain ... a loan ... on the faith of the thirteen United 
States," etc. f 

"That the charge made by lieut. Gen. Burgoyne, in his let- 
ter to major gen. Gates, of the 14th of Nov. of a breach of 
the public faith on the part of these states, is not warranted 
by the just construction of any article of the convention of 
Saratoga; that it is a strong indication of his intention, and 
affords just grounds of fear; that he will avail himself of such 
pretended breach of the convention, in order to disengage him- 
self and the army under him, of the obligations they are under 
to these United States ; and that the security which these states 
have had in his personal honor is hereby destroyed." % 

"It is essential to the liberties of the United States that due 
attention should be paid to the expenditure of their public 
monies, to enable them to support the war, and avoid that 
system of corruption . . . which prevails in the government 
of their unnatural enemies/ ■ § 

"And, further, the committee beg leave to report it as their 
opinion that these United States cannot, with propriety, hold 
any conference or treaty with any commissioners on the part 
of Great Britain, unless they shall, as a preliminary thereto, 
either withdraw their fleets and armies, or else, in positive and 
express terms, acknowledge the independence of the said 
states." || 

"Whereas, Congress have received from their commission- 
ers .. . copies of a treaty . . . between the crown of France 
and these United States, duly entered into and executed at 
Paris," etc. fl 

♦Journals of Congress, Nov. 4, 1777. 

t Ibid., December 2, 1777. 

%Ibid., January 8, 1778. 

§ Ibid,, February 5, 1778. 

I Ibid., April 22, 1778. 

Ubid., May 6, 1778. 



326 SECESSION AND CONSTITUTIONAL LIBERTY 

"I am further directed to inform your excellence, that Con- 
gress are inclined to peace . . . They will therefore be ready 
to enter upon the consideration of a treaty of peace . . . when 
the King of Great Britain shall demonstrate a sincere disposi- 
tion for that purpose. The only solid proof of this disposition, 
will be an explicit acknowledgment of the independence of 
these states," etc.* 

"Resolved, That Congress will, in a body, attend divine 
worship on Sunday, the 5th day of July next, to return thanks 
for the divine mercy in supporting the independence of these 
states." f 

"The Congress or grand council of the states may," etc. % 

"Whereas Congress . . . did declare that they would be 
ready to enter upon the consideration of a treaty of peace . . . 
when the King of Great Britain should demonstrate a sincere 
disposition for that purpose; and that the only solid proof of 
this disposition, would be an explicit acknowledgment of the 
independence of these states," etc. § 

"By the Congress of the United States of America 

A MANIFESTO 

"The United States having been driven to hostilities by the 
oppressive . . . measures of Great-Britain ; having been com- 
pelled to commit the essential rights of man to the decision of 
arms; and having been at length forced to shake off a yoke 
which had grown too burthensome to bear; they declared 
themselves free and independent." || 

"It having pleased Almighty God ... to bestow many 
great and manifold mercies on the people of these United 
States," etc. If 

* Draught of a letter in answer to letter from Commissioner of the 
King. Journals of Congress, June 17, 1778. 

t Journals of Congress, June 24, 1778. 

t Amendment proposed to the Articles of Confederation by South Car- 
olina. Journals of Congress, June 25, 1778. 

§ Journals of Congress, July 18, 1778. 

\\ Journals of Congress, October 30, 1778. 

it Journals of Congress, November 14, 1778, 



APPENDIX 21 327 

"Articles of Confederation and perpetual Union, between 
the States of New Hampshire [others named] : 

"Article I. The stile of this Confederacy shall be The 
United States of America/ 

"Article 2. Each state retains its sovereignty, freedom and 
independence, and every power, jurisdiction and right, which 
is not by this confederation expressly delegated to the United 
States, in Congress assembled," etc. 

"Upon those weighty considerations Congress have agreed 
to the annexed resolutions, and recommend them to the imme- 
diate attention of the respective legislatures of the United 
States, to the end that laws may be enacted to give them the 
most speedy, decisive and effectual operation." * 

"That for preventing ... be lodged by them under regu- 
lations in public offices . . . for the benefit of the inhabitants 
of the United States." f 

"Resolved, That the following letter be written to M. de 
Beaumarchais : SIR, The Congress of the United States of 
America, sensible of your exertions in their favour, present 
you with their thanks, and assure you of their regard. 

"They lament the inconvenience you have suffered by the 
great advances made in support of these states," etc. X 

"The committee . . . appointed to prepare a recommenda- 
tion to the several states to set apart a day of fasting . . . 
brought in a draught which was . . . agreed to as follows: 

"Whereas in just punishment of our manifold transgres- 
sions, it hath pleased the supreme disposer of all events to 
visit these United States with a calamitous war . . . 

"Resolved, That it be recommended to the several states," 
etc. § 

"On considering the resolution, 

"That these United States be called upon . . . for their 
respective quotas of," etc. || 

* Journals of Congress, Jan. 13, 1779. 
t Ibid., January 14, 1779. 
Xlbid., January 15, 1779. 
§ Ibid., March 20, 1779. 
|| Ibid., May 19, 1779. 



328 SECESSION AND CONSTITUTIONAL LIBERTY 

"To the inhabitants of the United States of America. 

"An alliance has been formed between his most Christian 
Majesty and these states . . . Fill up your battalions . . . 
place your several quotas in the Continental treasury . . . 
sink the emissions of your respective states." * 

"Resolved, That Sunday the 4th day of July, being the anni- 
versary of the declaration of independence of these United 
States," etc. f 

"In short, whoever considers that these states are daily 
increasing in power; that their armies have become veteran; 
that their governments, founded in freedom, are established ;" 
etc. % 

"Resolved, That it be recommended to the several states, to 
appoint . . . the 9th of December ... to be a day of . . . 
thanksgiving . . . and of prayer . . . that he would establish 
the independence of these United States upon the basis of re- 
ligion and virtue . . . 

"Done in Congress the 25th of October, (1779) and in the 
4th year of the United States of America." § 

"The relations of commerce between the subjects of the 
King, my master, and the inhabitants of the thirteen United 
States," etc. || 

". . . Whereas, effectually to remedy these evils, for which 
purpose the United States are now become competent, their 
independency being well assured, their civil governments estab- 
lished, and the spirit of their citizens ardent for exertion," 
etc.U 

"The treaty, as it now stands, is as follows : 

"The Congress of the United States of New Hampshire, 
[others named] by the grace of God sovereign, free and in- 
dependent, to all who shall see these presents . . . 

". . . for the defence, protection and safety of . . . the 

* Address to the Several States on the Present Situation of Affairs, 
Journals of Congress, May 26, 1779. 

t Journals of Congress, June 24, 1779. 

X Circular letter from the Congress of the U. S. of A. to their Con- 
stituents. Journals of Congress, September 13, 1779, 

§ Journals of Congress. 

|| Ibid., November 17, 1779. 

£ Ibid., March 18, 1780. 



APPENDIX 21 329 

subjects of his most Christian majesty and the people of the 
United States . . . The most Christian King and the thirteen 
United States of North America, viz., New Hampshire, [oth- 
ers named] willing . . . and his most Christian majesty 
guarantees on his part to the United States, their liberty, sov- 
ereignty, and independence, absolute and unlimited, as well 
in matters of government as commerce," etc.* 

". . . that they will prosecute the war . . . until ... a 
peace shall be happily accomplished, by which the full and ab- 
solute sovereignty and independency of these United States 
having been duly assured," etc. f 

"A treaty . . . between . . . the States general of the 
United Netherlands, and the United States of America, to wit 
New Hampshire." $ 

"Treaty . . . between . . . the King of Sweden and the 
United States of (North) America. 

"The King of Sweeden . . . and the thirteen United States 
of (North) America, to wit: New Hampshire [others 
named] . . . Now be it known that we the said United States 
of America in Congress assembled . . . do . . . ratify and 
confirm the said treaty." § 

"By the United States in Congress assembled. 

"A Proclamation — Whereas it hath pleased the Supreme 
Ruler ... to put a period to the effusion of human blood 
. . . and these United States are not only . . . but their free- 
dom, sovereignty and independence ultimately acknowledged. 
. . . the United States in Congress assembled, do recom- 
mend it to the several states ; to set apart the second Thursday 
. . . that all the people may then assemble," etc. || 

Charles Pinckney's Draft of a Federal Government has: 
"We the people of the States of New Hampshire, Massachu- 
setts (etc.) do ordain (etc.) 

"Art. I. The style of this government shall be the United 
States of America," etc. 

* Journals of Congress, July 11, 1780. 
t Ibid., October 4, 1782. 
tlbid., January 23, 1783. 

Ibid., July 29, 1783. 

Ibid., October 18, 1783. 



330 SECESSION AND CONSTITUTIONAL LIBERTY 

This was the style followed in the Report of the Committee 
of Detail, delivered to the Convention, August 6, by Mr. Rut- 
ledge, viz.: 

"We the people of the states of New Hampshire, Massachu- 
setts, Rhode Island [etc.] ... do ordain, declare, and estab- 
lish, the following Constitution for the government of our- 
selves and our posterity : — 

"Article I. — The style of the government shall be, 'The 
United States of America.' " 

As the list of enumerated States contains the names of 
entire thirteen, including Rhode Island and North Carolina, 
which did not ratify the Constitution, nor become members 
of the United States until some time after the government had 
been established, the reason for not retaining this style is 
sufficiently clear. It also shows that the two forms were 
accepted as identical. 

The Proceedings of the Commissioners to remedy defects 
of the Federal Government, September 1786, runs: 

"And to report such an act for that purpose to the United 
States in Congress assembled, as when agreed to by them,' , etc. 

The act of Virginia, appointing deputies to the Federal Con- 
vention, October 16, 1786, says: 

"And to render the United States as happy in peace as they 
have been glorious in war." 

"The United States in Congress assembled, ordered this 
statue to be erected in . . . honor of George Washington, the 
illustrious commander in chief of the armies of the United 
States of America, during the war which vindicated and se- 
cured their liberty, sovereignty and independence." * 

"Whereas it has been represented to this house by the hon. 
sieur Gerard . . . that 'it is pretended the United States have 
preserved the liberty of treating with Great Britain' . . . 
therefore 

''Resolved unanimously, That as neither France or these 

* Journals of Congress, August 7, 1788. 



APPENDIX 21 331 

United States may of right, so these United States will not 
conclude," etc. 

"That the faith of the thirteen United States be pledged 
for the redemption," etc. 

"It is therefore recommended to the legislative or executive 
powers of these United States, to set apart Thursday . . . for 
solemn thanksgiving and praise; that . . . the good people 
may express the grateful feelings," etc. 

The Treaty of Peace is published under the following title, 
by two separate publishers in Philadelphia, 1795 : 

"Treaty of amity . . . between his Britannic Majesty and 
the United States of America, by their President, with the 
advice and consent of their Senate. Conditionally ratified 
. . . June 24, 1795." 

The reply of the President, of Congress to Washington's 
resignation of the office of Commander-in-Chief, says : 

"The United States in Congress assembled, receive with 
emotions too affecting for utterance, the solemn resignation 
of the authorities under which you have led their troops . . . 
You have persevered till these United States . . . have been 
enabled ... to close the war in freedom, safety and inde- 
pendence. . . ." 

Washington's first inaugural says: 

"And, in the important revolution just accomplished, in the 
system of their united government, the tranquil deliberations 
and voluntary consent of so many distinct communities," etc. 

"The proceedings have been reported to Congress, and will 
probably be published for the satisfaction of the good people 
of these United States." * 

In the same way the following: 

"I take the liberty of sending you a copy of the Constitu- 

* Washington to Harrison, March 10, 1783. Note in this connection the 
plural, separative force of the previous "these," though the word "people" 
is used collectively. 



132 SECESSION AND CONSTITUTIONAL LIBERTY 

tion, which the federal convention has submitted to the people 
of these States." * 

"Genl. Washington is well known as the Commander in 
chief of the late American army. Having conducted these 
states to independence & peace . . . " f 

"The efforts of Great-Britain to reduce these United States 
being now almost brought to a period;" etc." X 

George Mason's endorsement on his Declaration of Rights, 
(of Virginia) says: 

"This Declaration of Rights was the first in America, and 
was afterwards closely imitated by the other United States." 

"The eyes of the United States are turned upon this assem- 
bly, and their expectations raised to a very anxious degree." § 

"It is not probable that the United States will in future be 
so ideal as to risk their happiness upon the unanimity of the 
whole," etc. || 

Mr. Tench Coxe (?) in his "Examination of the Constitu- 
tion for the United States of America," Phila., 1788, says: 

"Every person who desires to know the true situation of the 
United States of America, in regard to the freedom and pow- 
ers of their governments," etc. 

"The Congressional Register; or, History of the Proceed- 
ings and Debates of the first House of Representatives of the 
United States of America: namely, New-Hampshire, Mas- 
sachusetts, Connecticut, New- York, New- Jersey, Pennsylva* 
nia, Delaware, Maryland, Virginia, South-Carolina and Geor^ 
gia. Being the Eleven States that have Ratified the Constitu- 
tion of the Government of the United States. . . . New- 
York: . . . 1789." 

"A Topographical description of the Western Territory of 

* Washington to Patrick Henry, September 24, 1787. 

t "Character Sketches of Delegates to the Federal Convention," by 
William Pierce, Delegate from Georgia. 

t Observations on the American Revolution, published according to a 
Resolution of Congress by their Committee; Phila., 1779. 

§ George Mason to George Mason, Jr., June 1, 1787. 

|| R. D. Spaight to James Iredell, August 12, 1787 ; McKee, "Life of 
Iredell," Vol. II, p. 168. 



APPENDIX 21 333 

North America ... To which is added ... an account of 
the Indian nations inhabiting within the limits of the Thirteen 
United States ... by Geo. Imlay . . . Commission for lay- 
ing out lands in the Back Settlements," L., 1793. 

"It might not have been deemed proper, to submit the sov- 
ereignty of the United States, against their own will, to ju- 
dicial cognizance." * 

"This clause enables the judicial department to receive juris- 
diction to the full extent of the constitution, laws, and treaties 
of the United States, when any question respecting them shall 
assume," etc. f 

"Many expressions in the constitution prove that its name 
did not imply a national government, nor convey any power. 
Under such a construction, its whole tenour would be absurd, 
and all its limitations useless. The president shall, from time 
to time, give to Congress information as to the state of the 
union/ Why not as to the state of the nation? Because there 
was no nation, the state of which was subjected to the legis- 
lative power of Congress. . . . 

"The terms of the guarantee in other views demolish the 
doctrines of a union between individuals constituting an Amer- 
ican nation, and of recondite powers in the word constitution. 
The United States shall guarantee to every state in this union/ 
Thus it is positively asserted, that our union is a union of 
states, and not of individuals, and that it is a guarantee by 
states to states, and not of an American nation to states. The 
sovereignty of states is necessary, both to undertake and to 
require the fulfilment of the guarantee. Corporations could 
do neither. Had the attempt in the convention to establish a 
national government succeeded, the recognition contained in 
the mutual guarantee, that the union was a union of independ- 
ent states, could not have been consistently introduced into the 
constitution. 

"This guarantee ought to be considered in another very 
important light. Is the supreme court of the United States 

* Martin vs. Hunter's Lessee, in Judge Marshall's Opinions, Boston, 

1839. 

t Gibbons vs. Ogden, in Judge Marshall's Opinions, Boston, 1839; 
Vide also Appendix 3, ante. 



334 SECESSION AND CONSTITUTIONAL LIBERTY 

invested with a power of supervising and enforcing it? The 
question must be answered affirmatively, if this court can 
abridge i or measure the rights of the states. A republican 
form of state government can only be constituted by rights. 
Are these rights guaranteed to the states by each other, or by 
the federal court? Had Mr. Madison and Mr. Hamilton ad- 
verted to this guarantee, when they were discussing the ques- 
tion, whether the court or Congress possessed the supremacy 
contended for, over the state governments, it would have fur- 
nished them with some lights towards its decision. As it is a 
guarantee by states to states, Mr. Madison must have proved 
that the court, and Mr. Hamilton that Congress, was the 
United States, to have invested either with a power of abridg- 
ing (if a guarantee possesses this power), these republican 
rights. It seems to be a plain matter of fact, whether the 
court, or Congress, or the states themselves, are considered 
by the constitution as the guardian of state rights. It contains 
two positive stipulations for the preservation of state rights, 
or a republican form of government; their reservation, and a 
guarantee of this reservation. Neither Congress nor the fed- 
eral judiciary is mentioned in either. Had the powers of either 
department embraced a right to regulate the division of power 
between the federal and state governments, this could not 
have happened. To counteract the ambition of usurpation, 
and the ingenuity of construction, t the positive division of 
power is protected by the solemn compact of a mutual guar- 
antee between the states themselves. This compact extends 
to all the rights, only to be secured by a republican form of 
government, and includes constructive alterations of the con- 
stitution, by which these rights may be abridged, without the 
concurrence of the parties to the guarantee. The federal 
judiciary does not contract with each state to preserve its re- 
publican form of government; and if it obtains a power to 
regulate those rights by which this form is constituted, it may 
destroy the republican forms of state governments, without 
violating an engagement. This consideration discloses the 
wide difference between the guarantee expressed, and the con- 
structive guarantee usurped. The first does not comprise a 



APPENDIX 22 335 

power of taking from the states their republican rights; the 
other does. The federal court, by seizing upon the guarantee, 
and transforming it from a duty to preserve the republican 
rights of the states, into a power of abridging them, has 
claimed a supremacy over this compact, without being even a 
party to it. The supremacy claimed for Congress, is also ex- 
tracted from the guarantee usurped by the court, by confound- 
ing the words United States and Congress, as of the same 
import. But the constitution plainly distinguishes between 
them. The United States, and not Congress, are invested with 
the powers of appointing the members of the three great de- 
partments of the federal government, and of amending the 
constitution. Specified powers are given to each federal de- 
partment, repeatedly distinguishing between them all and the 
United States, the donors. The members of Congress are to 
be paid out of a treasury of the United States. Had this 
treasury been a property and not a trust in Congress, there 
would have been no occasion for adding this item to the other 
demands, to which the property of the United States was sub- 
jected, because it was not the property of Congress. The citi- 
zens of each state shall be citizens in the several states, exclud- 
ing the idea that Congress, as being the United States, might 
grant this mutual citizenship; and acknowledging state sov- 
ereignties by acknowledging state citizenship. A criminal flee- 
ing from justice shall be removed to the state having jurisdic- 
tion of the crime. If Congress or the court are to be consid- 
ered as the United States, yet the ! exclusive jurisdiction of 
each state is here acknowledged. Treason against the United 
States is specified by the act of the states, and its punishment 
only intrusted to Congress. Can Congress, as being the United 
States, extend or abridge this crime? If not, it cannot extend 
any other delegated power, or abridge any reserved power 
upon the same ground. But a majority of the United States 
themselves can do neither, and a majority of Congress, even 
if it is the United States, can have no greater power than a 
majority of the states. Neither of these majorities were in- 
vested by the guarantee with a power of transforming our 

federal system into a supreme consolidated government; and 
1—22 



336 SECESSION AND CONSTITUTIONAL LIBERTY 

no powers or duties assigned to the United States, were in- 
tended to have the effect of enabling either a majority of states 
or of Congress, to subvert the rights of the states, which the 
guarantee was intended to prevent." * 



APPENDIX 22 
{Page 56) 

"The opinion that the constitution was formed by 'the peo- 
ple of the United States,' as contradistinguished from the 
people of the several States, that is, as contradistinguished 
from the States as such, is founded exclusively on the particu- 
lar terms of the preamble. The language is, 'We, the people 
of the United States, do ordain and establish this Constitution 
for the United States of America.' 'The people do ordain 
and establish, not contract and stipulate with each other. The 
people of the United States, not the distinct people of a par- 
ticular State with the people of the other States.' In thus 
relying on the language of the preamble, the author rejects the 
lights of history altogether. I will endeavour in the first place 
to meet him on his own ground. 

"It is an admitted rule, that the preamble of a statute may 
be resorted to in the construction of it; and it may, of course, 
be used to the same extent in the construction of a constitution, 
which is a supreme law. But the only purpose for which it can 
be used is to aid in the discovery of the true object and inten- 
tion of the law, where these would otherwise be doubtful. 
The preamble can in no case be allowed to contradict the law, 
or to vary the meaning of its plain language. Still less can it 
be used to change the true character of the law-making power. 
If the preamble of the Constitution had declared that it was 
• made by the people of France or England, it might, indeed, 
have been received as evidence of that fact, in the absence of 
all proof to the contrary; but surely it would not be so re- 

*John Taylor, of Caroline, "New Views on the Constitution," pp. 225, 
228-230; 1823. 



APPENDIX 22 337 

ceived against the plain testimony of the instrument itself, and 
the authentic history of the transaction. If the convention 
which formed the Constitution was not, in point of fact, a con- 
vention of the people of the United States, it had no right to 
give itself that title; nor had it any right to act in that char- 
acter, if it was appointed by a different power. And if the 
Constitution, when formed, was adopted by the several States, 
acting through their separate conventions, it is historically 
untrue that it was adopted by the aggregate people of the 
United States. The preamble, therefore, is of no sort of value 
in settling this question; and it is matter of just surprise that 
it should be so often referred to, and so pertinaciously relied 
on, for that purpose. History alone can settle all difficulties 
upon this subject. 

"The history of the preamble itself ought to have convinced 
our author, that the inference which he draws from it could 
not be allowed. On the 6th of August 1787, the committee ap- 
pointed for that purpose reported the first draft of a consti- 
tution. The preamble was in these words: 'We, the people 
of the States of New Hampshire, Massachusetts, Rhode Island 
and Providence Plantations, Connecticut, New York, New 
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North 
Carolina, South Carolina and Georgia, do ordain, declare and 
establish the following constitution, for the government of 
ourselves and our posterity/ (1 Elliot's Debates, 255.) On 
the very next day this preamble was unanimously adopted ; and 
the reader will at once perceive, that it carefully preserves the 
distinct sovereignty of the States, and discountenances all idea 
of consolidation. (lb. 263.) The draft of the Constitution 
thus submitted was discussed, and various alterations and 
amendments adopted (but without any change in the pream- 
ble), until the 8th of September, 1787, when the following res- 
olution was passed : Tt was moved and seconded to appoint a 
committee of five, to revise the style of, and arrange the ar- 
ticles agreed to, by the house ; which passed in the affirmative.' 
(lb. 324.) It is manifest that this committee had no power to 
change the meaning of anything which had been adopted, but 
were authorized merely 'to revise the style/ and arrange the 



338 SECESSION AND CONSTITUTIONAL LIBERTY 

matter in proper order. On the 12th of the same month they 
made their report. The preamble, as they reported it, is in 
the following words: 'We, the people of the United States, 
in order to form a more perfect union, to establish justice, 
insure domestic tranquillity, provide for the common defence, 
promote the general welfare, and secure the blessings of lib- 
erty to ourselves and our posterity, do ordain and establish 
this constitution for the United States of America.' (lb. 
326. ) It does not appear that any attempt was made to alter 
this phraseology in any material point, or to reinstate the 
original. The presumption is, therefore, that the two were 
considered as substantially the same, particularly as the com- 
mittee had no authority to make any change, except in the 
style. The difference in the mere phraseology of the two was 
certainly not overlooked; for on the 13th September, 1787, 'it 
was moved and seconded to proceed *to the comparing of the 
report from the committee of revision, with the articles which 
were agreed to by the house, and to them referred for ar- 
rangement; which passed in the affirmative. And the same 
was read by paragraphs, compared, and, in some places, cor- 
rected and amended.' (lb. 338.) In what particulars these 
corrections and amendments were made, we are not very dis- 
tinctly informed. 22A The only change which was made in the 
preamble, was by striking out the word 'to,' before the words 
'establish justice' ; and the probability is, that no other change 
was made in any of the articles, except such as would make 
'the report of the committee of revision' 'correspond with the 
articles agreed to by the house.' The inference, therefore, is 
irresistible, that the convention considered the preamble re- 
ported by the committee of revision, as substantially corres- 
ponding with the original draft, as unanimously 'agreed to by 
the house.' 

"There is however another and a perfectly conclusive reason 
for the change of phraseology, from the States by name, to the 
more general expression 'the United States'; and this, too, 
without supposing that it was intended thereby to convey a 
different idea as to the parties to the constitution. The revised 
draft contained a proviso that the constitution should go into 



APPENDIX 22 339 

operation when adopted and ratified by nine States. It was, of 
course, uncertain whether more than nine would adopt it, or 
not, and if they should not, it would be altogether improper 
to name them as parties to that instrument. As to one of them, 
Rhode Island, she was not even represented in the Convention, 
and, consequently, the others had no sort of right to insert her 
as a party. Hence it became necessary to adopt a form of ex- 
pression which would apply to those who should ratify the 
constitution, and not to those who should refuse to do so. The 
expression actually adopted answers that purpose fully. It 
means simply, 'We, the people of those States who have united 
for that purpose, do ordain/ etc. This construction corre- 
sponds with the historical fact, and reconciles the language 
employed with the circumstances of the case. Indeed, similar 
language was not unusual through the whole course of the 
revolution. The people of his majesty's colonies,' 'the people 
of the united colonies,' 'the people of the United States,' are 
forms of expression which frequently occur, without intend- 
ing to convey any other idea, than that of the people of the 
several colonies or states." 22B * 

The phrase was used not merely before the Confederation 
and the Revolution but even before the Declaration, when it 
will scarcely be contended that the unifying meaning can be 
deduced from it : 

"Whereas, since the close of the last War, the British Par- 
liament, claiming a power of Right, to bind the People of 
America," etc. f 

"We therefore in the name of the people of these United 
Colonies . . . declare," etc. X 

"Whereas his' Britannic majesty, in conjunction with the 
lords and commons of Great Britain, has, by a late act of 
parliament, excluded the inhabitants of these United Colonies 
from the protection of his crown . . . and it is necessary 
that the exercise of every kind of authority under the said 

* Upshur, "Review of Story." 

t Journals of Congress, Declaration of Rights, October 14, 1774. 

%Ibid., December 6, 1775. 



340 SECESSION AND CONSTITUTIONAL LIBERTY 

crown, should be totally suppressed, and all the powers of 
government exerted, under the authority of the people of the 
colonies . . . therefore resolved," etc.* 

"Resolved, That it be recommended to the respective as- 
semblies and conventions of the United Colonies, where no 
government sufficient to the exigencies of their affairs hath 
been hitherto established, to adopt such government, as shall 
in the opinion of the representatives of the people, best con- 
duce to the happiness and safety of their constituents in par- 
ticular, and America in general." f 

Here, prior to the Declaration, the term is used in a context 
unsusceptible of misconstruction to indicate the people of the 
colonies severally. 

"We therefore, the representatives of the United States 
of America in General Congress assembled . . , do, in 
the name, and by authority of the good people of these col- 
onies solemnly publish and declare," etc. X 

It is also used with an unmistakably disjunctive connotation 
after the Declaration and Confederation, both commonly and 
officially. 

"Resolved that 'be published in the several gazettes, that the 
good people of these United States may be informed,' " etc. § 

"Resolved, That every officer who holds ... a commis- 
sion . . . from Congress shall take . . . the following 
oath . . . 

"I do acknowledge the United States of America to 

be free, independent and sovereign states and declare that the 
people thereof owe no allegiance," etc. || 
. "From all which it appears evident to your committee, that 

* Journals of Congress, May 15, 1776. Preamble to resolution of the 
10th inst. 

flbid., May 10, 1776. 

t Declaration of Independence. 

§ Journals of Congress, July 19, 1776. 

II Ibid., February 3, 1778. 



APPENDIX 22 341 

the said bills are intended to operate upon the hopes and fears 
of the good people of these states, so as to create divisions 
among them and a defection from the common cause." * 

"Whereas . . . letters . . . lately received from Eng- 
land . . . are found to contain ideas insidiously calculated 
to divide and delude the good people of these states," etc. f 

"... and this slender security is still farther weakened, 
by the consideration that it was pledged to rebels (as they 
unjustly call the good people of these states) with whom they 
think they are not bound," etc. X 

"Whereas Congress have received intelligence, that the com- 
missioners of the King of Great Britain are about to send 
. . . certain seditious papers ... to stir up dissentions 
. . . among the good people of these states . . . " § 

"The people of the Thirteen States are almost in the same 
state as 13 people who form a business agreement," etc. || 

"It is therefore recommended to the several states to set 
apart the 13th day of December next, to be . . . observed 
as a day of thanksgiving . . . that all the people may as- 
semble on that day," etc. ff 

"What will be the result of their [the Delegates to the Con- 
vention] meeting I cannot with any certainty determine, but I 
hardly think much good can come of it; the people of America 
don't appear to me to be ripe for any great innovation & it 
seems they are ultimately to ratify or reject; . . . The dele- 
gates from the Eastwd. are for a very strong government 
. . . but I don't learn that the people are with them, on ye 
contrary in Massachusetts they think ... in Connecticut 
they have . . . R. Island has refused to send members . . . 
New Hampshire has not ... In New York . . . Jersey 
will . . . Pennsylvania will join provided ... I shall 

* Journals of Congress, April 22, 1778. 

f Ibid., June 17, 1778. 

$An Address of the Congress to the inhabitants of the United States 
of America. Journals of Congress, May 8, 1778. 

§ Journals of Congress, Oct. 15, 1778. 

|| Pelatiah Webster, "Essay on the Economy ... of the Thirteen 
States," etc.; Phila., 1781. 

H Journals of Congress, October 26, 1781. 



342 SECESSION AND CONSTITUTIONAL LIBERTY 

make no observations on the Southern States, but I think they 
will," etc.* 

"That all power is originally vested in and consequently 
derived from the people . . . That the powers of govern- 
ment may be re-assumed by the people, whensoever it shall 
become necessary to their happiness; that every power, juris- 
diction and right, which is not by the said constitution clearly 
delegated to the Congress of the United States, or the depart- 
ments of the government thereof, remains to the people of the 
several states, or to their respective state governments, to 
whom they may have granted the same," etc. f 

"Judge Iredell, in delivering his opinion, goes much more 
fully into the examination of the powers of the revolutionary 
government . . . After proving that the several colonies 
were, to all intents and purposes, separate and distinct, and 
that they did' not form 'one people' in any sense of the term, 
he says, Tf congress, previous to the articles of confederation, 
possessed any authority, it was an authority, as I have shown, 
derived from the people of each province in the first instance. 
The authority was not possessed by congress, unless given by 
all the States/ I conclude therefore, that every particle of 
authority, which originally resided either in Congress or in 
any branch of the State governments, was derived from the 
people who were permanent inhabitants of each province, in 
the first instance, and afterwards became citizens of each 
State; that this authority was conveyed by each body politic 
separately, and not by all the people in the several provinces 
or states jointly/' % 

The opinion of no single individual should have more weight 
as regards Constitutional questions than that of the "Father 
of the Constitution." Upon this point it is clear, and given, " 

- * William Grayson, letter, May 29, 1787. That the locution of "the 
people" as here used refers to them separatively, by States, the context 
can leave no doubt. 

f Ratification of New York, Journals of Congress; Vide also Appendix 
19, for quotations by Washington bearing on the subject. 

JAbel P. Upshur, "Brief Inquiry into the Federal Government," pp. 
34, 35; Phila., 1863. 



APPENDIX 22 343 

not under circumstances of his sometimes over-subtle ratioci- 
nation but incidentally and unpolemically. 

"Mr. Madison . . . suggested also that, as far as the 
Articles of Union were to be considered as a treaty only, of a 
particular sort, among the governments of independent states, 
the doctrine might be set up that a breach of any one article, 
by any of the parties, absolved the other parties from the 
whole obligation. For these reasons ... he thought it in- 
dispensable that the new Constitution should be ratified . . . 
by the supreme authority of the people themselves." * 

In this "Suggestion" Madison was only carrying out a 
long-formed idea. He had already written, in a letter which 
also clearly shows who were "the people" he had in mind : 

"I think myself that it will be expedient, in the first place, 
to lay the foundation of the new system in such a ratification 
by the people themselves of the several States as will render 
it clearly paramount to their Legislative authorities." t 

"I think, at the same time that a consolidation of the States 
into one simple republic is not less unattainable than it would 
be inexpedient," he writes to Randolph, April 8, 1787; and 
again, in the same words, to Washington, April 16, 1787. 

"But whatever respect may be thought due to the intention 
of the Conventions, which prepared and proposed the Consti- 
tution, as presumptive evidence of the general understanding 
at the time of the language used, it must be kept in mind that 
the only authoritative intentions were those of the people of 
the States, as expressed in the Conventions which ratified the 
Constitution." £ 

"It is clear, that if the meaning of the Constitution is to be 
sought out of itself, it is . . .in those State Conventions 
which gave it all the validity & authority it possesses." § 

"The Convention consists now as it has generally done of 

* Elliot's "Debates," Vol. V, p. 158. 
t Madison to Jefferson, March 19 (18), 1787. 
t Madison to M. L. Hurlbert, May, 1830. 
§ Madison to N. P. Trist, December, 1831, 



344 SECESSION AND CONSTITUTIONAL LIBERTY 

eleven States ... A Government will probably be sub- 
mitted to the people of the States," etc.* 

" 'But it was not sufficient,' say the adversaries of the pro- 
posed Constitution, 'for the convention to adhere to the repub- 
lican form. They ought, with equal care, to have preserved 
the federal form, which regards the Union as a Confederacy 
of sovereign states; instead of which, they have framed a 
national government, which regards the Union as a consolida- 
tion of the States/ . . . 

"In order to ascertain the real character of the government, 
it may be considered in relation to the foundation on which it 
is to be established . . . 

"On examining the first relation, it appears, on one hand, 
that the Constitution is to be founded on the assent and ratifi- 
cation of the people of America, given by deputies elected for 
the special purpose; but, on the other, that this assent and 
ratification is to be given by the people, not as individuals 
composing one entire nation, but as composing the distinct and 
independent States to which they respectively belong. It is 
to be the assent and ratification of the several States, derived 
from the supreme authority in each State — the authority of 
the people themselves. The act, therefore, establishing the 
Constitution, will not be a national, but a federal act." t 

In "The Federalist," No. 40, he says : 

"Will it be said that the fundamental principles of the Con- 
federation were not within the purview of the convention, and 
ought not to have been varied? I ask, What are these prin- 
ciples? Do they require that, in the establishment of the Con- 
stitution, the States should be regarded as distinct and inde- 
pendent sovereigns ? They are so regarded by the Constitution 
proposed. . . . Instead of reporting a plan requiring the 
confirmation of the legislatures of all the States, they have 
reported a plan which is to be confirmed by the people, and 
may be carried into effect by nine States only . . . They 
[the delegates to the Convention] must have reflected that, in 

* Madison to Jefferson, September 6, 1787. 
t Madison, "The Federalist," No. 39. 



APPENDIX 22 345 

all great changes of established governments, forms ought to 
give way to substance; that a rigid adherence in such cases 
to the former would render nominal and nugatory the trans- 
cendent and precious right of the people 'to abolish or alter 
their governments as to them shall seem most likely to effect 
their safety and happiness' . . . They must have recollected 
that it was by this irregular and assumed privilege of propos- 
ing to the people plans for their safety and happiness that 
. . . conventions were elected in the several States for estab- 
lishing the constitutions under which they are now governed 
. . . They must have borne in mind that, as the plan to 
be framed and proposed was to be submitted to the people 
themselves, the disapprobation of this supreme authority would 
destroy it forever; its approbation blot out antecedent errors 
and ir regularities,' ' 

In one of his latest writings (Elliot, Vol. V, p. 120) he says: 

"As a sketch on paper, the earliest, perhaps of a constitu- 
tional government for the Union (organized into regular de- 
partments, with physical means operating on individuals), to 
be sanctioned by the people of the states, acting in their 
original and sovereign character, was contained in the letters 
of James Madison to Thomas Jefferson, of the 19th of March; 
to Governor Randolph, of the 8th of April; and to General 
Washington, of the 16th of April, 1787, — for which see their 
respective dates." 

Here he evidently claims the credit of having been the first 
to suggest the plan which, in his opinion, was afterwards 
adopted, "of a constitutional government for the Union . . . 
to be sanctioned by the people of the states acting in their 
original and sovereign character." 

"As to the other branch of the subject, I deserted Colonel 
Hamilton, or rather Colonel H. deserted me; in a word, the 
divergence between us took place — from his wishing to ad- 
ministration, or rather to administer the Government into what 
he thought it ought to be ; while, on my part, I endeavored to 
make it conform to the Constitution as understood by the 



346 SECESSION AND CONSTITUTIONAL LIBERTY 

Convention that produced and recommended it, and particu- 
larly by the State Conventions that adopted it." * 

Hamilton, speaking to the New York State ratifying Con- 
vention, said: 

"Will the people suffer themselves to be stripped of their 
privileges ? Will they suffer their legislatures to be reduced to 
a shadow and a name ?" 

Here both the plural of legislature and the context of the 
passage which is to show that the States are indestructible by 
the Constitution, show positively that Mr. Hamilton in speak- 
ing of "the people," referred to the people of the several 
States. 

Thus the locution itself was so commonly used to connote 
the people of the States severally before the Constitution, the 
Confederation, even before the Declaration, that it has no 
weight whatever as evidence to indicate a unified people of the 
United States. Such a meaning, while in absolute contradic- 
tion both to the political results of the Constitution and the 
history of its formation, is not even indicated by the phrase- 
ology. Not only, as has been shown, were the States (♦. e., 
the people of the several States) throughout recognized as 
the parties thereto but the whole struggle concerning repre- 
sentation between the large and small States (which Mr. 
Madison said was the rock on which the Convention almost 
split) f with its correlated compromises (e. g., that the Senate 
should not be given power to originate money bills — to prevent 
the small from thus taxing the large States, etc. ) , would have 
been absolutely purposeless if it was the "people of the United 
States" as one people who were concerned therein. 

"Against this concomitancy of interpretation, the consoli- 
dating school takes refuge under the word 'people/ and con- 
tends that it is susceptible of a meaning which inflicts upon 
many of its associates the character of nonsense, and deprives 

* N. P. Trist, "Memoranda of Conversations with Madison," Sept. 27, 

1834. 

t Vide, ante, Appendix 16, Letter to Van Buren. 



APPENDIX 22 347 

them of their right to assist in the construction of the consti- 
tution. Let us therefore endeavour to defend it against the 
aspersion of hostility to its best friends, and to save it from 
the crime of self-murder. In all ages metaphysicians have 
been so skilful in splitting principles, as to puzzle mankind in 
their search after truth; and morality itself would be lost by 
the minuteness of their dissections, except for the resistance 
of common sense, and the dictates of unsophisticated con- 
science. But the achievement of losing twenty-four sovereign 
states by the acuteness of construction, and getting rid of a 
people in each, by means of the word necessary to describe 
them, was reserved for the refined politicians of the present 
day; and is equivalent to the ingenuity of a fisherman, who 
should lose a whale by a definition of his name, which would 
destroy his qualities. 

"At the commencement of the revolutionary war, emer- 
gency dictated temporary expedients, and delayed the formal 
adoption of measures for constituting a people in each prov- 
ince. A Congress was therefore appointed by provincial legis- 
latures, by one branch of these legislatures, or by districts in a 
province ; but when disorder was exchanged for independence, 
it was appointed, and its powers were derived from the state 
governments, who were deemed sufficient to ratify the dec- 
laration of independence, because they represented a people 
circumscribed within each state territory. The same species 
of sanction was resorted to, for the ratification of both the 
union of 1777 and the union of 1787. The ratification of the 
first was to be made by 'the legislatures of all the United 
States,' and of the latter by 'the conventions of nine states/ 
The reference to their representatives in both cases, far from 
acknowledging that each state was without a people, acknowl- 
edged the contrary. The differences between the two modes 
of ratification, consisted in the distinction between the words 
'legislatures and conventions/ and between the necessity for 
unanimity in one case, and the sufficiency of nine states in the 
other, to establish the proposed unions. In neither, could the 
object be effected by a majority. of the people of the United 
States. Whatever may be the difference between the words 



348 SECESSION AND CONSTITUTIONAL LIBERTY 

legislatures and conventions in other cases, there is none in 
this, because both were representatives of the same people. 
Why did the first union require a unanimity of states? Be- 
cause a people of each state had been created by the declaration 
of independence, invested with sovereignty, and therefore en- 
titled to unite or not. Why were the ratifying nine states 
only to be united by the second? For the same reason; 
demonstrating, that as to the ratification of both, no distinction 
was made between legislatures and conventions; and that a 
concurrence or rejection of either, was considered as a sov- 
ereign act of a state people by their representatives. This prin- 
ciple is confirmed beyond all doubt, by the different modes in 
which men act when framing a constitution for a consolidated 
people, or creating a federal union between distinct states. In 
the first case, neither the consent of every individual, nor of 
every county, is necessary, because no individual possesses 
sovereign power, and because no county comprises a people 
politically independent. If there are thirteen counties in a 
state, and the deputies of four dissent from a constitution, it 
is yet obligatory upon all, because all are subject to the sov- 
ereign power of one people. The constitution of the United 
States was only obligatory upon the ratifying states, because 
each state comprised a sovereign people, and no people existed, 
invested with a sovereignty over the thirteen states. This 
consent, whether expressed by state legislatures or state con- 
ventions, was the consent of distinct sovereignties, and there- 
fore the consent of nine states could not bind four dissenting 
states, or even one. A majority of a state legislature or con- 
vention dictates to a minority, because it exercises the sov- 
ereignty of an associated people over individuals. If state 
nations had not existed, they could not have exercised this 
authority over minorities, and therefore it is necessary to 
admit their existence in order to bestow validity upon the 
federal constitution. 

"The establishment of state governments, demonstrates the 
existence of state nations. No act can ascertain the existence 
of a sovereign and independent community more completely, 
than the creation of a government; nor any fact more com- 



APPENDIX 22 349 

pletely prove that these communities were each constituted of a 
distinct people, than that of their having established different 
forms of government. If the art of construction shall acquire 
the power both of dispensing with the meaning of words, and 
also with the most conclusive current of facts by which these 
words have been interpreted, it will be able, like the dispensing 
power of kings, to subvert any principles, however necessary 
to secure human happiness, and to break every ligament for 
tying down power to its good behaviour." * 

"To the reasons before urged to prove the fallacy of this 
argument for introducing a national government, I shall sub- 
join others, apparently new and strong. 'Treason against the 
United States, shall consist only in levying war against them, 
or in adhering to their enemies.' In this clause of the consti- 
tution, the word 'people' is dropt, and the words 'United 
States' used to define the nature of the government. I have 
selected the case of treason to illustrate the argument, for 
reasons which will appear as we proceed, but the reader will 
be pleased to recollect, that throughout the constitution the 
word people is never associated with the words United States, 
except in the first line of the preamble. We have a Congress, 
a president, and a judicial power of the United States, but no 
such departments of the people of the United States. Even in 
the preamble itself, the constitution is established, not for the 
people of the United States, but 'for the United States of 
America.' The reconciliation of these different phrases seems 
to be easy. That used in the first line of the preamble refers 
to the ratification of the constitution, and that used in the last 
line, and throughout the constitution, to the character of the 
government. The ratification was to be the act of the people 
of the states, by conventions, but the government was to be a 
confederation of United States, and not a consolidated or a 
national government of the people inhabiting all these states. 
The form, therefore, of the ratification, could not alter the 
nature of the compact, nor reflect upon federal rulers the least 
power or supremacy whatever. 'The president, and all the 
civil officers of the United States, shall be removed from office 

*John Taylor, of Caroline, "Views of the Constitution," p. 7-9; 1823. 



350 SECESSION AND CONSTITUTIONAL- LIBERTY 

by impeachment/ The article reaches representatives and 
senators. Both are contemplated as equally officers of a fed- 
eral, and neither as officers of a national government, or offi- 
cers of an aggregate nation. They are to be tried by a federal 
tribunal. Had any of them been national officers, they would 
have been tried by some national tribunal. The case of treason 
suggests several important observations. It is divided into 
two classes, high and petit. The first class comprises crimes 
against sovereignty, and their punishment is an appendage 
of sovereign power. State governments exercise the right of 
defining and punishing these crimes, because they represent 
state sovereignty, and corporations can do neither, because 
they are not sovereign. Indictments are drawn in the name 
of the commonwealth, or of the people of the state, and con- 
clude 'against the peace and dignity of the commonwealth, or 
of the state associated people, or of the state, or against the 
peace, government, and dignity of the state/ for these varieties 
are used in state constitutions, expressing the social sover- 
eignty, by which traitors and other criminals are brought to 
justice. Why was it necessary to invest the federal govern- 
ment with a power to punish only a species of treason defined 
by the constitution? Because it was not a national govern- 
ment, and therefore had no power to define or punish any 
crime whatsoever, committed against sovereign power. Why 
was it allowed to punish only a few specified crimes? Because 
they were injurious to the federal union of states, and the 
state sovereignties were competent to the punishment of all 
crimes against the peace and dignity of the state, or injurious 
to individuals." * 

"Who made it ? 'We, the people of the United States/ But 
who were they? The associated inhabitants of each state, or 
the unassociated inhabitants of all the states. This question is 
an exposition, either of the ignorance or the design of con- 
struction. If there is no difficulty in answering it, construction 
ought to be laughed at for playing the fool ; but if it gives the 
wrong answer, as supposing it to furnish contrary inferences 

* John Taylor, of Caroline, "New Views on the Constitution," pp. 196- 
198; 1823. 



APPENDIX 22 351 

to the right one, it ought to be suspected of playing the knave. 
At least an attempt to construe away a fact, known to every- 
body, is a very fine specimen of its character when aiming at 
an accession of power. It has been imagined, that by consider- 
ing the union as the act of the people, in their natural, and not 
in their political associated capacity, some aspect of consolida- 
tion might be shed over the country, and that the federal 
government might thereby acquire more power. But I cannot 
discern that the construction of the constitution will be affected 
in the smallest degree, by deducing it from either source, pro- 
vided a sound authority is allowed to the source selected. 
Every stipulation, sentence, word and letter; and every dona- 
tion, reservation, division and restriction, will be exactly the 
same, whichever is preferred. A man, having two titles, may 
distinguish himself by which he pleases, in making a con- 
tract; and whichever he uses, he remains himself. So the 
people having two titles or capacities, one arising from an 
existing association, the other from the natural right of self- 
government, may enter into a compact under either, but are 
themselves still; and their acts are equally obligatory, which- 
ever they may select. Politicians may therefore indulge their 
tastes in deducing the constitution of the union from either, 
but whichever they may fancy, no sound ground will thence 
result for their differing in the construction of it. 

"Nevertheless, to take away the pretext, however unsub- 
stantial, for a different construction of the constitution, on 
account of the capacity or title under which the people acted 
in its establishment, it is material to ascertain the meaning of 
the phrase 'we the people of the United States;' towards 
which, let us run over most of the state constitutions. 

"New Hampshire. 'The people of this state have the sole 
and exclusive right of governing themselves as a free, sov- 
ereign and independent state. Every subject of this state. In 
the government of this state. The people inhabiting the terri- 
tory formerly called the province of New Hampshire, do 
hereby solemnly and mutually agree with each other to form 
themselves into a free, sovereign and independent body poli- 
tick or state. That the state may be equally represented. I 
1—23 



352 SECESSION AND CONSTITUTIONAL LIBERTY 

do swear that I will bear faith and true allegiance to the state 
of New Hampshire. ' 

"Massachusetts. 'The body politick is formed by voluntary 
association of individuals. The people of this commonwealth 
have the sole right of governing themselves as a free, sov- 
ereign and independent state. The people do hereby mutually 
agree with each other, to form themselves into a free, sov- 
ereign and independent body politick or state/ 

"New York. This convention, in the name and by the 
authority of the good people of this state. The legislature of 
this state. No members of this state shall be disfranchised. 
Delegates to represent this state in the general congress of the 
United States. Be it enacted by the people of the state. 3 

"Pennsylvania. 'We the people of the commonwealth of 
Pennsylvania ordain. The legislature of a free state. All 
government originates from the people and is founded in 
compact only.' 

"Delaware. The people of this state. The government 
shall be called the Delaware state. The legislature of this 
state. The general assembly of this state. There shall be no 
establishment of any one religious sect in this state.' 

"Maryland. The people of this state ought to have the 
sole and exclusive right of regulating the internal government 
thereof. The legislature of this state. The delegates to con- 
gress from this state shall be chosen by joint ballot of both 
houses of assembly. I will be faithful and bear true allegiance 
to the state. 3 

"Virginia. 'All power is derived from the people. Magis- 
trates are their trustees or servants. A well regulated militia 
is the proper defence of a free state. 3 

"North Carolina. The people of this state have the sole 
and exclusive right of regulating the internal government 
thereof. Monopolies are contrary to the genius of a free state. 
All commissions shall run in the name of the state of North 
Carolina. The legislature of this state. The constitution of 
this state. 3 

"South Carolina. The legislative authority of this state. 
The several election districts in this state shall elect. The style 



APPENDIX 22 353 

of process shall be "The state of South Carolina, and con- 
cluded against the peace and dignity of the state." I swear to 
preserve the constitution of this state and of the United 
States.' 

"Georgia. 'Members of the legislature shall swear to pro- 
mote the good of the state, to bear true allegiance to the same, 
and to observe the constitution. To make laws necessary for 
the good of the state. Citizens and inhabitants of this state. 3 

"Vermont. 'The people are the sole source of power. 
They have the exclusive right of internal government. All 
officers of government are their servants. Legislative and 
executive business of this state. The people have a right to 
exact from their legislators and magistrates the good govern- 
ment of the state. The legislature of a free and sovereign 
state. Shall be entitled to all the privileges of a freeman of 
this state. Every officer shall swear to be faithful to the state 
of Vermont, and to do nothing injurious to the constitution 
or government thereof/ 

"Without further quotations, let us demonstrate the force 
of these, extracted from a majority of the state constitutions, 
to fix the meaning of the term 'state' according to the publick 
judgment, by substituting the word 'government' for it. They 
would then read as follows. 

" 'The people of this government have the sole and ex- 
clusive right of governing themselves as a free, sovereign and 
independent government' 

" Tn the government of this government. 3 

" 'That the government may be equally represented.' 

" 'The people of this government ought to have the sole and 
exclusive right of regulating the internal government thereof.' 

" 'The legislature of this government.' 

" T will be faithful and bear true allegiance to the govern- 
ment.' 

" 'The several election districts in this government shall 
elect.' 

" 'Members of the legislature shall swear to promote the 
good of the government and to make laws for the good of the 
government.' 



354 SECESSION AND CONSTITUTIONAL LIBERTY 

" 'Citizens and inhabitants of this government/ 

" 'The people have a right to exact from their legislators 
and magistrates the good government of the government.' 

" 'Commissions shall be in the name of the freemen of the 
government. 3 

"It would be an incivility to the reader, to subjoin to these 
quotations, many arguments, to prove, that the term 'state' is 
not in any one instance used in reference to all the people of 
the United States, either as composing a single state, or as 
being about to compose a single state. Used geographically, 
it refers to state territory; used politically, it refers to the in- 
habitants of this territory, united by mutual consent into a 
civil society. The sovereignty of this association, the alle- 
giance due to it, and its right to internal government, are all 
positively asserted. The terms 'state and government' far 
from being synonymous, are used to convey different ideas; 
and the latter is never recognised as possessing any species of 
sovereignty. 

"It next behooves us to consider whether the term 'states' 
has changed its meaning, by being transplanted from its origi- 
nal nursery, into the constitution of the United States ; and is 
there used to designate all the inhabitants of the United States, 
as constituting one great state; or whether it is recognised in 
the same sense in which it had been previously used by most or 
all of the state constitutions. 

"The plural 'states' rejects the idea, that the people of all 
the states considered themselves as one state. The word 
'united' is an averment of pre-existing social compacts, called 
states; and these consisted of the people of each separate state. 
It admits the existence of political societies able to contract 
with each other, and who had previously contracted. And the 
words 'more perfect union' far from implying that the old 
parties to the old union were superseded by new parties, evi- 
dently mean, that these same old parties were about to amend 
their old union. 

"But the parties, though recognised as being the same, were 
not strictly so. The authority of the people of each state is 
resorted to in the last union, in preference to that of the 



APPENDIX 22 355 

government of each state, by which the old confederation was 
formed. This circumstance by no means weakens the force of 
the last observation, because the recognition of existing politi- 
cal parties able to contract, remains the same. The states, in 
referring to the old union, only admit themselves to have been 
bound by their governments, as they possessed the right of 
making treaties. But as the state governments were the parties 
to the first confederation, and as such, had a mutual right to 
destroy that treaty, this danger suggests another reason for the 
style and principles of the new union. Among its improve- 
ments, that by which it is chiefly made 'more perfect,' was the 
substitution of the authority of 'the people of the United. 
States' for that of the governments of the United States; not 
with an intention of excluding from the new union the idea of 
a compact between the states, but of placing that compact upon 
better ground, than that upon which it previously rested. 

"The term 'union' has never been applied to describe a 
government, established by the consent of individuals ; nor do 
any of our state constitutions use it in that sense. They speak 
indeed of individuals 'uniting' to form a government, not to 
form a union ; and I do not recollect that a single compact be- 
tween individuals for the establishment of a government, has 
ever been called a union ; though a multitude of cases, exist, in 
which that name has been given to agreements between inde- 
pendent states. If therefore this term comprised the whole 
evidence, to prove that our union was the act of distinct bodies 
politick, composed of the people within different geographical 
boundaries, and not of a number of people, encircled by one 
line, without any such discrimination, it would be sufficient. 

"But the constitution itself furnishes the plainest corres- 
pondent evidence, in its origin, establishment and terms. The 
members of the convention which formed it, were chosen by 
states, and voted by states, without any regard to the number 
of people in each state. It was adopted by thirteen votes, with- 
out respecting the same principle. Now what was represented 
by these voters; the territory of each state, or the people of 
each state ? The terms 'United States' must refer to one or the 
other. If to the former, then the territories of each state 



356 SECESSION AND CONSTITUTIONAL LIBERTY 

entered into a compact 'to form a more perfect union, establish 
justice, insure domestick tranquillity, provide for the common 
defence, promote the general welfare, and secure the blessings 
of liberty to ourselves and our posterity.' The posterity of 
territories. If to the latter, it was the people of each state, 
who by compact in their political capacity, by giving one vote 
each, formed the union. . . . 

"The rights of a people are indivisible; and if a great people 
be compounded of several smaller nations, as it inherently 'pos- 
sesses the right of self-government, it must absorb the same 
right of self-government in its component parts; just as the 
rights of individuals are absorbed by the communities into 
which they constitute themselves. Therefore had a people 
been constituted, by melting down the little nations into one 
great nation, those little nations must have lost the right of 
self government, because they would no longer have been a 
people. As it was never imagined, that the individuals inhabit- 
ing all the states had constituted themselves into one people, 
so there has never appeared from this imaginary body politick, 
the least attempt towards claiming or exercising the right of 
self-government; nor is the government of the union subjected 
to its controul or modification. Not a single one of the United 
States would have consented to have dissolved its people, to 
have reunited them into one great people, and to have received 
state governments or unrestricted legislation from this great 
people, so ignorant of local circumstances, and so different in 
local habits. This reasoning would I think have been suffi- 
cient to ascertain the people by whom the constitution was 
made, had it contained no internal evidence of the sense in 
which it uses that term. But if the phrase 'we the people of 
the United States' refers to the people of each state, the argu- 
ment is superfluous, and the decision of the constitution itself, 
decisive. 

"The powers reserved are those 'not delegated by the consti- 
tution.' They could only be reserved by those who possessed 
them. They were not powers possessed by a consolidated 
people of all the states, but by a distinct people of each state; 
and as those who reserved were those who delegated, it fol- 



APPENDIX 22A 357 

lows, either that the reservation was to a consolidated people 
of all the states, or that the delegation of powers flowed from 
the people of the separate states.' ' * 



APPENDIX 22A 

(Page 338) 

"But, my dear sir, what can a history of the Constitution 
avail towards interpreting its provisions. This must be done 
by comparing the plain import of the words, with the general 
tenor and object of the instrument. That instrument was 
written by the fingers which write this letter. Having rejected 
redundant and equivocal terms, I believed it to be as clear as 
our language would permit ; excepting, nevertheless, a part of 
what relates to the Judiciary. On that subject, conflicting 
opinions had been maintained with so much professional as- 
tuteness, that it became necessary to select phrases, which 
expressing my own notions would not alarm others, nor shock 
their selflove, and to the best of my recollection, this was the 
only part which passed without cavil." f 

Mr. Morris's testimony shows the criticism to which his 
draught was subjected; though his belief in the clarity of the 
instrument must seem doubtful, in view of the various tricks 
to incorporate in it views (which he knew, if recognized, 
would not pass unchallenged) in such a form that they might 
pass unnoticed, and afford standing ground for later powers 
by Congress unintended by the Convention or people, e. g.: 

"I always thought that when we would acquire Canada & 
Louisiana it would be proper to govern them as provinces and 
allow them no voice in our councils. In wording the 3d sec- 
tion of the 4th article I went as far as circumstances would 
permit to establish the exclusion. Candor obliges me to add 

* John Taylor, "Construction Construed," pp. 39-44, 47 ; Richmond, 1820. 
f Gouvemeur Morris to Timothy Pickering, December 22, 1814. 



358 SECESSION AND CONSTITUTIONAL LIBERTY 

my belief that had it been more pointedly expressed, a strong 
opposition would have been made. ,, * 

A practical admission that he had drafted this section in 
such a way that his desire thereby to hold the people of ac- 
quired territory as subjects should not be understood and 
defeated. 

"The constitution as agreed at first was, that amendments 
might be proposed either by Congress or the Legislatures. A 
committee was appointed to digest and redraw. Gouverneur 
Morris and King were of the Committee. One morning 
Gouverneur Morris moved an instrument for certain altera- 
tions (not one-half the members yet come in). In a hurry 
and without understanding, it was agreed to. The committee 
reported so that Congress should have the exclusive power 
of proposing amendments. George Mason observed it on the 
report, and opposed it. King denied the construction. Mason 
demonstrated it, and asked the committee by what authority 
they had varied what had been agreed. Gouverneur Morris 
then imprudently got up, and said, by authority of the Conven- 
tion, and produced the blind instructions before mentioned, 
which was unknown by one-half of the House, and not till 
then understood by the other. They then restored it as it 
originally stood/' f 

"A little suspicion attaches to the work of Morris in pre- 
paring this last draft of the Constitution . . . It is also due 
to stories that were whispered about in the years following the 
adoption of the new Constitution. One illustration of that is 
to be found in connection with the 'general welfare' clause 
just considered. In the report of the Committee on Style, 
this clause was separated from the preceding and following 
clauses by semicolons, thus making it an independent power 
of Congress. That was not the way in which it had been 
adopted by the convention, but it was more in accordance with 
Morris's ideas. The change may or may not have been in- 

* Gouverneur Morris, letter to Henry Livingston, with reference to 
purchase of Louisiana, 
t Jefferson, "The Anas." 



APPENDIX 22A 359 

tentional, but Albert Gallatin a few years later stated openly 
in Congress that 'he was well informed' that this modification 
was 'a trick' devised by 'one of the members who represented 
the State of Pennsylvania.' In the constitution as it was 
finally engrossed the clause was changed back to its original 
form, and the credit for this Gallatin gave to Sherman." * 

Study of the Convention records indeed leads to more than 
suspicion that Mr. Morris was not the only delegate willing 
to cog for government against freedom. Judge Marshall, a 
witness most favourable to that side, said : 

"The framers of the constitution wished its adoption, and 
well knew that it would be endangered by its strength, not by 
its weakness. Had they been capable of using language which 
would convey to the eye one idea, and, after deep reflection, 
impress on the mind another, they would rather have dis- 
guised the grant of power than its limitation." f 

That Mr. Morris, at least, was "capable of using language 
which would convey to the eye one idea, and after deep re- 
flection, impress on the mind another," is evident. 

And surely this statement of Judge Marshall and the evi- 
dent bias of influential framers, afford strong reason for a 
strict construction of the Constitution. 

"Mr. Madison and Mr. Hamilton, the champions of the 
national and monarchical systems, liberally yielded to the ex- 
ample established in the convention, and renewed the same 
conciliatory treaty. The publick indeed was not edified by 
the arguments used by one of these accomplished men, for 
reducing the states to corporations, and establishing a supreme 
national government; nor by the eulogies of a limited mon- 
archy, expressed by the other; and with unexampled felicity 
both substituted for the consolidating and monarchical dialect, 
used in the convention, a federal one, ingeniously constructed 
to accommodate itself with publick opinion, and also with the 

* Max Farrand, "The Framing of the Constitution," p. 182 ; New 
Haven, 1913. 

f M'Culloch vs. State of Maryland, Marshall, "Opinions," p. 175; B., 
1839. 



360 SECESSION AND CONSTITUTIONAL LIBERTY 

prepossessions of their respective partisans. Monarchy and 
consolidation disappeared from the question, conspicuous as 
they had been in &ie journal, and the term federal was adopted, 
because it would embrace the parties inclined to either, and 
also the party adverse to both, but friendly to a federal system. 
If this new dialect, so different from that used in the conven- 
tion, was policy, the monarchical and consolidating parties will 
of course adhere to the same policy ; if it was the consequence 
of an essential difference between a national and a federal 
government, a national dialect cannot be proper for construing 
the constitution, since a federal dialect was necessary to pro- 
cure its ratification. If these gentlemen were sincere in the 
convention, the arguments they used in opposition to a federal 
system, cannot be applicable in defence of it; if they were 
ingenious in procuring the ratification of the constitution, the 
ingenuity consisted in copious solicitations of publick opinion 
by federal doctrines, mixed with tints transfused from the 
conclave, too faint to alarm the federal party, and yet suffi- 
ciently perceivable to obtain the concurrence of the consolidat- 
ing and monarchical parties. The intimations that supremacy 
or sovereignty was lodged in Congress or the supreme federal 
court, enveloped in clouds of sound federal reasoning, was a 
profound or lucky piece of dexterity to effect both objects." * 



APPENDIX 22B 

(Page 339) 

Exception to the term "the people" was taken in two, at 
least, of the Ratifying Conventions. But neither the grounds 
of exception, nor the answers thereto appear to indicate that 
the point now in question was prominent in the thought of the 
delegates. 

In the Convention of North Carolina 

"The preamble of the Constitution was then read. 

"Mr. Caldwell. Mr. Chairman, if they mean, We, the 

* John Taylor, of Caroline, "Views on the Constitution," pp. 50-51, 1823. 



APPENDIX 22B 361 

people, — the people at large, — I conceive the expression is im- 
proper. Were not they who framed this Constitution the 
representatives of the legislatures of the different states? In 
my opinion, they had no power, from the people at large, to 
use their name, or to act for them. They were not delegated 
for that purpose. 

"Mr. Maclaine. The reverend gentleman has told us, 
that the expression, We, the people, is wrong, because the gen- 
tlemen who framed it were not the representatives of the 
people. I readily grant that they were delegated by states. 
But they did not think that they were the people, but intended 
it for the people, at a future day. The sanction of the state 
legislatures was in some degree necessary. It was to be sub- 
mitted by the legislatures to the people; so that, when it is 
adopted, it is the act of the people. When it is the act of the 
people, their name is certainly proper. This is very obvious 
and plain to any capacity. 

"Mr. Davie. Mr. Chairman, the observation of the rev- 
erend gentleman is grounded, I suppose, on a supposition that 
the Federal Convention exceeded their powers. This objection 
has been industriously circulated; but I believe, on a candid 
examination, the prejudice on which this error is founded will 
be done away. As I had the honor, sir, to be a member of 
the Convention, it may be expected I would answer an objec- 
tion personal in its nature, and which contains rather a reflec- 
tion on our conduct, than an objection to the merits of the 
Constitution. After repeated and decisive proofs of the total 
inefficiency of our general government, the states deputed the 
members of the Convention to revise and strengthen it. And 
permit me to call to your consideration that, whatever form of 
confederate government they might devise, or whatever pow- 
ers they might propose to give this new government, no part 
of it was binding until the whole Constitution had received 
the solemn assent of the people. What was the object of our 
mission? 'To decide upon the most effectual means of remov- 
ing the defects of our federal union.' This is a general, dis- 
cretional authority to propose any alteration they thought 
proper or necessary. Were not the state legislatures after- 



2,62 SECESSION AND CONSTITUTIONAL LIBERTY 

wards to review our proceeding's? Is it not immediately 
through their recommendation that the plan of the Convention 
is submitted to the people? And this plan must still remain 
a dead letter, or receive its operation from the fiat of this 
Convention. . . . 

"Mr. Caldwell wished to know why the gentlemen who 
were delegated by the states, styled themselves, We, the people. 
He said that he only wished for information. 

"Mr. Iredell answered, that it would be easy to satisfy 
the gentleman; that the style, We, the people, was not to be 
applied to the members themselves, but was to be the style of 
the Constitution, when it should be ratified in their respective 
states, 

"Mr. Joseph Taylor. Mr. Chairman, the very wording 
of this Constitution seems to carry with it an assumed power. 
We, the people, is surely an assumed power. Have they said, 
We, the delegates of the people? It seems to me that, when 
they met in Convention, they assumed more power than was 
given them. Did the people give them the power of using 
their name ? This power was in the people. They did not give 
it up to the members of the Convention. If, therefore, they 
had not this power, they assumed it. It is the interest of every 
man, who is a friend to liberty, to oppose the assumption of 
power as soon as possible. I see no reason why they assumed 
this power. Matters may be carried still farther. This is a 
consolidation of all the states, Had it said, We, the states, 
there would have been a federal intention in it. But, sir, it is 
clear that a consolidation is intended. Will any gentleman say 
that a consolidated government will answer this country? It 
is too large. The man who has a large estate cannot manage it 
with convenience. I conceive that, in the present case, a con- 
solidated government can by no means suit the genius of the 
people. The gentleman from Halifax (Mr. Davie) mentioned 
reasons for such a government. They have their weight, no 
doubt ; but at a more convenient time we can show their 
futility. We see plainly that men who come from New Eng- 
land are different from us. They are ignorant of our situa- 
tion; they do not know the state of our country. They cannot 



APPENDIX 22B 363 

with safety legislate for us, I am astonished that the servants 
of the legislature of North Carolina should go to Philadelphia, 
and, instead of speaking of the state of North Carolina, should 
speak of the people. I wish to stop power as soon as possible; 
for they may carry their assumption of power to a more dan- 
gerous length. I wish to know where they found the power 
of saying We, the people, and of consolidating the states. 

"Mr. Maclaine. Mr. Chairman, I confess myself aston- 
ished to hear objections to the preamble. They say that the 
delegates to the Federal Convention assumed powers which 
were not granted them ; that they ought not to have used the 
words We, the people. That they were not the delegates of 
the people, is universally acknowledged. The Constitution is 
only a mere proposal. Had it been binding on us, there might 
be a reason for objecting. After they had finished the plan, 
they proposed that it should be recommended to the people by 
the several state legislatures. If the people approve of it, it 
becomes their act. Is not this merely a dispute about words, 
without any meaning whatever? Suppose any gentleman of 
this Convention had drawn up this government, and we 
thought it a good one; we might respect his intelligence and 
integrity, but it would not be binding upon us. We might 
adopt it if we thought it a proper system, and then it would 
be our act. Suppose it had been made by our enemies, or had 
dropped from the clouds; we might adopt it if we found it 
proper for our adoption. By whatever means we found it, 
it would be our act as soon as we adopted it. It is no more 
than a blank till it be adopted by the people. When that is 
done here, is it not the people of the state of North Carolina 
that do it, joined with the people of the other states who have 
adopted it? The expression is, then, right. But the gentle- 
man has gone farther, and says that the people of New Eng- 
land are different from us. This goes against the Union alto- 
gether. They are not to legislate for us; we are to be repre- 
sented as well as they. Such a futile objection strikes at all 
union. We know that without union we should not have been 
debating now. I hope to hear no more objections of this 



364 SECESSION AND CONSTITUTIONAL LIBERTY 

trifling nature, but that we shall enter into the spirit of the 
subject at once. 

"Mr. Caldwell observed, that he only wished to know why 
they had assumed the name of the people. 

"Mr. James Galloway. Mr. Chairman, I trust we shall 
not take up more time on this point. I shall just make a few 
remarks on what has been said by the gentleman from Hali- 
fax. He has gone through our distresses, and those of the 
other states. As to the weakness of the Confederation, we all 
know it. A sense of this induced the different states to send 
delegates to Philadelphia. They had given them certain pow- 
ers; we have seen them, they are now upon the table. The 
result of their deliberations is now upon the table also. As 
they have gone out of the line which the states pointed out to 
them, we, the people, are to take it up and consider it. The 
gentlemen who framed it have exceeded their powers, and 
very far. They will be able, perhaps, to give reasons for so 
doing. If they can show us any reasons, we will, no doubt, 
take notice of them. But, on the other hand, if our civil and 
religious liberties are not secured, and proper checks provided, 
we have the power in our own hands to do with it as we think 
proper. I hope gentlemen will permit us to proceed. 

"The clerk then read the 1st section of the 1st article." * 

It will be seen that Mr. Joseph Taylor is the only delegate 
in whose mind the question seems, somewhat formlessly, to 
have arisen, and it was apparently so little considered that it 
was not taken up even by the opponents of the clause. The 
point of contest in the phrase seems to lie in the opposition 
of the terms "people" and "States" ; and "people" and "dele- 
gates." 

In the Virginia convention, under the leadership of Mr. 
Henry, the point was pressed home. 

"And here I would make this inquiry of those worthy char- 
acters who composed a part of the late federal Convention. I 
am sure they were fully impressed with the necessity of form- 
ing a great consolidated government, instead of a confedera- 

* Elliot's "Debates," Vol. IV, pp. 15-16, 23-26. 



APPENDIX 22B 365 

tion. That this is a consolidated government is demonstrably 
clear; and the danger of such a government is, to my mind, 
very striking. I have the highest veneration for those gentle- 
men; but, sir, give me leave to demand, What right had they 
to say, We, the people? My political curiosity, exclusive of 
my anxious solicitude for the public welfare, leads me to ask, 
Who authorized them to speak the language of, We, the peo- 
ple, instead of, We, the states? States are the characteristics 
and the soul of a confederation. If the states be not the agents 
of this compact, it must be one great, consolidated, national 
government, of the people of all the states." * 

The leaders of the fight for ratification answered : 

"The gentleman then proceeds, and inquires why we as- 
sumed the language of 'We, the people.' I ask, Why not? 
The government is for the people; and the misfortune was, 
that the people had no agency in the government before. . . . 
What harm is there in consulting the people on the construc- 
tion of a government by which they are to be bound? Is it 
unfair? Is it unjust? If the government is to be binding on 
the people, are not the people the proper persons to examine its 
merits or defects? I take this to be one of the least and most 
trivial objections that will be made to the Constitution; it 
carries the answer with itself." f 

"But an objection is made to the form : the expression, We, 
the people, is thought improper. Permit me to ask the gentle- 
man who made this objection, who but the people can delegate 
powers? Who but the people have a right to form govern- 
ment? The expression is a common one, and a favorite one 
with me. The representatives of the people, by their authority, 
is a mode wholly inessential. If the objection be, that the 
Union ought to be not of the people, but of the state govern- 
ments, then I think the choice of the former very happy and 
proper. What have the state governments to do with it? 
Were they to determine, the people would not, in that case, 
be the judges upon what terms it was adopted." % 

* Henry. In Va. Ratifying Convention, 

f Randolph. 
$ Pendleton. 



366 SECESSION AND CONSTITUTIONAL LIBERTY 

"He then adverted to the style of government, and asked 
what authority they had to use the expression, 'We, the peo- 
ple,' and not We, the states. This expression was introduced 
into that paper with great propriety. This system is sub- 
mitted to the people for their consideration, because on them 
it is to operate, if adopted. It is not binding on the people 
until it becomes their act. It is now submitted to the people of 
Virginia. If we do not adopt it, it will be always null and void 
as to us. Suppose it was found proper for our adoption, and 
becoming the government of the people of Virginia; by what 
style should it be done? Ought we not to make use of the 
name of the people? No other style would be proper." * 

Yet later (like Mr. Madison) Mr. Lee attached no im- 
portance to this, e. g. : 

"General Lee then contended, that the ruling principle in 
the Resolutions was erroneous. They asserted as a funda- 
mental position, that the existing Constitution was a compact 
of States. He denied this position : declaring the Constitution 
to be a compact among the people. The ancient confederation 
was a compact among the States : it was so in style, manner 
and power. But the Government under which we now live, 
was precisely the reverse. What is its style ? 'We the people. ' 
What is its manner? Executed by functionaries appointed 
mediately or immediately by the people. What is its power? 
That of the people : derived from them, and based upon them. 
How then could it be asserted that the present Constitution 
is a compact of States? And would the Committee sanction 
by their approbation, a declaration palpably wrong? It was 
true, there was to be drawn from the Constitution some faint 
support for this erroneous construction. The Senate, one 
branch of the Federal Government, was elected by the States, 
as States. This deviation from the general system could not 
be relied on to destroy the system itself. It was the result 
of our peculiar situation. The smaller States could not be in- 
duced to renounce their existing equality entirely. It was 

*Lee. 



APPENDIX 22B 367 

necessary to compromise, in order to obtain the happy Consti- 
tution we possess." * 

Mr. Henry, replying to these gentlemen, said : 

"I rose yesterday to ask a question which arose in my own 
mind. When I asked that question, I thought the meaning of 
my interrogation was obvious. The fate of this question and 
of America may depend on this. Have they said, We, the 
states? Have they made a proposal of a compact between 
states? If they had, this would be a confederation. It is 
otherwise most clearly a consolidated government. 2261 The 
question turns, sir, on that poor little thing, — the expression, 
We, the people, instead of the states, of America. . . . 

"The honorable gentleman's observations, respecting the 
people's right of being the agents in the formation of this 
government, are not accurate, in my humble conception. The 
distinction between a national government and a confederacy 
is not sufficiently discerned. Had the delegates, who were 
sent to Philadelphia, a power to propose a consolidated govern- 
ment instead of a confederacy? Were they not deputed by 
states, and not by the people? The assent of the people, in 
their collective capacity, is not necessary to the formation of 
a federal government. The people have no right to enter into 
leagues, alliances, or confederations; they are not the proper 
agents for this purpose. States and foreign powers are the 
only proper agents for this kind of government. Show me an 
instance where the people have exercised this business, Has it 
not always gone through the legislatures ? I refer you to the 
treaties with France, Holland, and other nations. How were 
they made? Were they not made by the states? Are the 
people, therefore, in their aggregate capacity, the proper per- 
sons to form a confederacy? This, therefore, ought to depend 
on the consent of the legislatures, the people having never sent 
delegates to make any proposition for changing the govern- 
ment. Yet I must say, at the same time, that it was made on 
grounds the most pure ; and perhaps I might have been brought 

* Debates in House of Delegates, Virginia, Dec. 20, 1798. 
1—24 



368 SECESSION AND CONSTITUTIONAL LIBERTY 

to consent to it so far as to the change of government. But 
there is one thing in it which I never would acquiesce in. I 
mean, the changing it into a consolidated government, which 
is so abhorrent to my mind." . . . 

Mr. Madison said : 

"Give me leave to say something of the nature of the 
government, and to show that it is safe and just to vest it with 
the power of taxation. There are a number of opinions; but 
the principal question is, whether it be a federal or consoli- 
dated government. In order to judge properly of the question 
before us, we must consider it minutely in its principal parts. 
I conceive myself that it is of a mixed nature; it is in a man- 
ner unprecedented ; we cannot find one express example in the 
experience of the world. It stands by itself. In some respects 
it is a government of a federal nature; in others, it is of a con- 
solidated nature* Even if we attend to the manner in which 
the Constitution is investigated, ratified, and made the act of 
the people of America, I can say, notwithstanding what the 
honorable gentleman has alleged, that this government is not 
completely consolidated, nor is it entirely federal. Who are 
parties to it? The people — but not the people as composing 
one great body; but the people as composing thirteen sover- 
eignties. Were it, as the gentleman asserts, a consolidated 
government, the assent of a majority of the people would be 
sufficient for its establishment; and, as a majority have adopted 
it already, the remaining states would be bound by the act of 
the majority, even if they unanimously reprobated it. Were 
it such a government as is suggested, it would be now binding 
on the people of this state, without having had the privilege 
of deliberating upon it. But, sir, no state is bound by it, as it 
is, without its own consent. " . . . 

"But he objects to the expression, 'We, the people/ and de- 
mands the reason why they had not said, 'We, the United 
States of America/ In my opinion, the expression is highly 
proper : it is submitted to the people, because on them it is to 
operate : till adopted, it is but a dead letter, and not binding on 
any one ; when adopted, it becomes binding on the people who 



APPENDIX 22B 369 

adopt it. It is proper on another account. We are under 
great obligations to the federal Convention, for recurring to 
the people, the source of all power. The gentleman's argu- 
ment militates against himself : he says that persons in power 
never relinquish their powers willingly. If, then, the state 
legislatures would not relinquish part of the powers they now 
possess, to enable a general government to support the Union, 
reference to the people is necessary.' , * 

"The introductory expression of 'We, the people/ has been 
thought improper by the honorable gentleman. I expected no 
such objection as this. Ought not the people, sir, to judge of 
that government whereby they are to be ruled? We are, sir, 
deliberating on a question of great consequence to the people 
of America, and to the world in general.' , f 

It will be seen from these speeches that Mr. Madison was 
the only one of his opponents who squarely took issue with 
Mr. Henry.J 

Mr. Lee said later: 

"But, sir, this is a consolidated government, he tells us ; and 
most feelingly does he dwell on the imaginary dangers of this 
pretended consolidation. I did suppose that an honorable 
gentleman, whom I do not now see (Mr. Madison), had placed 
this in such a clear light that every man would have been sat- 
isfied with it. 

"If this were a consolidated government, ought it not to be 
ratified by a majority of the people as individuals, and not as 
states? Suppose Virginia, Connecticut, Massachusetts, and 
Pennsylvania, had ratified it; these four states, being a ma- 
jority of the people of America, would, by their adoption, 
have made it binding on all the states, had this been a consoli- 
dated government. But it is only the government of those 
seven states who (sic) have adopted it. If the honorable gen- 
tleman will attend to this, we shall hear no more of con- 
solidation." 

* Wilson Nicholas. 

tCorbin; Elliot's "Debates," Vol. III. 

$ Vide t Appendix 31D 8 for Mr. Madison's opinion in full. 



370 SECESSION AND CONSTITUTIONAL LIBERTY 

APPENDIX 22B 1 

{Page 367) 

In this Mr. Henry was certainly mistaken. The Constitu- 
tion itself declares, Article 7, that "The ratification of the con- 
ventions of nine states, shall be sufficient for the establishment 
of this constitution between the States so ratifying the same." 

Also its authorization declares it to have been "Done in con- 
vention by the unanimous consent of the States present," etc. 

APPENDIX 23 

{Page 74) 

"The case of slavery helps to illustrate the federal line, and 
to refute the doctrine of a national supremacy. A federal 
compact, and not an American nation, caused slaves to be 
counted in adjusting a federal representation. A national 
representation would not have been in any degree deduced 
from slaves. Independent of other circumstances, slavery 
demonstrated the necessity of a line between state and federal 
powers. An usurped federal supremacy could as easily get 
over it in this case, as in those of banks, lotteries, and an 
appellate jurisdiction; and there would be less difficulty in 
proving that slavery, abstracted from local circumstances, is 
prejudicial to the welfare of the United States, than that 
banks, lotteries, and the appellate jurisdiction, will advance it. 
The states ignorant of facts, might be enchanted with the 
theory of converting black slaves into good patriots, whilst the 
states experimentally qualified to judge, might know that the 
idea was visionary. Every other local interest to which a 
general sympathy does not extend, was provided for by the 
division of power, which provided for the case of slavery. All 
or none of the powers reserved to the states, must be embraced 
by the federal supremacy contended for. The English intro- 



APPENDIX 23 371 

duced slavery to get money from the provinces, by their ca- 
pacity for making tobacco; the capitalists use it also to get 
money from some states, by their incapacity to become manu- 
facturers, which England had also in view from her monopoly 
through the pretext of commercial regulations. Both used it 
to extract an enormous tribute from a local misfortune. A 
federal division of power was designed to prevent such frauds 
of a concentrated supremacy, and not to* fleece local incapaci- 
ties to enrich superior industry." * 

"A Federal government is one, in whose organism States 
are factors, through which States as such, act with their united 
powers. 

"In this sense I aver, that there is no act of any department 
of the government of the United States, and no function of 
the United States government, which is not mediately or im- 
mediately impelled by State authority. 

"1. Congress. 

"(a) Senate. As in this body, each State by its legislature 
elects two Senators, the equality of States, and their power as 
such, through their governments, is obvious. Colorado, with 
40,000, is the equal of New York with her 4,300,000: or one 
man in Colorado is equal to 107 in New York ! (I take census 
of 1870.) 

"(b) House of Representatives. In this body, the equality 
of the States is at an end. The will of the State is expressed 
by its voting population. But this house is the representative 
of the States, and for the following reasons: 

"The Constitution so declares in these quotations. It shall 
be 'composed of members chosen every second year by the 
people of the several States.' 'Each State shall have at least 
one Representative,' etc. Art. 1, § 2, cl. 3. 'When vacancies 
happen in the representation from any State, the executive 
authority thereof shall issue writs of election to fill such 
vacancies.' Art. 1, § 2, cl. 4. The number of Electors in each 
State shall be 'equal to the whole number of Senators and 
Representatives to which each State may be entitled in the 

* John Taylor, of Caroline, "New Views on the Constitution," pp. 276, 
277; 1823. 



372 SECESSION AND CONSTITUTIONAL LIBERTY 

Congress/ Art. 2, § I, cl. 2. In any vote for President, in 
the House of Representatives, 'the representation from each 
State having one vote/ 

"Again. This appears by the fact that the representative 
must inhabit the State he represents and because he represents 
it; that each State, however small, has one representative, so 
that Colorado has one for her 40,000, though New York and 
other States have only one for every 137,000; or the repre- 
sentative of the 40,000, because they are the people of a State, 
has more than three times the weight of one from New York : 
and thus there is and can be no confusion of citizens of one 
State with those of another in representation. The citizens 
of each are distinct because in separate States. 

"Again. The suffragans for representatives are prescribed 
by the State, and by the State alone. The voices, which speak 
through the representatives, are such as the State ordains. 
And if the State chooses to elect all her representatives by 
general vote, she may unify her State sentiment in proportion 
to her population; or if Congress, under the Constitution, 
makes the election by districts, the State may so district her- 
self as to organize her power as she pleases. 

"These facts demonstrate, that the votes of States are taken 
in the House of Representatives, though the number which 
each has depends on its population, so as that each shall have 
at least one. 

"The States speak in the Senate through their legislatures; 
in the House of Representatives through their voters; the leg- 
islatures and the voters being established and ordained by the 
States. 

"The effect of this obviously may be to defeat the will of 
the majority of the people of the United States, considered as 
a whole, for while in the lower House the States of Nevada, 
Colorado and Oregon, together have only enough population 
for one representative, on the basis of apportionment, they 
have three votes as States; and in the Senate a majority of 
States (taking the smallest) have only nine millions, while the 
remainder have twenty-nine millions of people ; and thus one- 
fourth of the whole people (38,000,000 by the census of 1870) 



APPENDIX 23 373 

may defeat the will of three- fourths; and if the people of the 
States in the minority are unanimous in favor of a measure, 
and those in the majority are nearly divided, four and a half 
millions could obstruct the will of thirty-three millions, or one 
man in a small State obstruct the purpose of seven and a half 
in a large State. All this is the result of the fact, that States 
are the factors in legislation of Congress. 

"2. Executive. 

"The President is chosen by electors. Each State shall ap- 
point, as its legislature may direct, electors equal in number 
to its Senators and Representatives. Const. U. S., art. 2, 
§ I, cl. 2. 

"The electors meet, not in one body, but in their respective 
States. Id., cl. 3. 

"By this mode Colorado has three electors for her 40,000, 
or one for every 13,000 people. New York thirty-five for her 
4,300,000 of people, or one for every 120,000; or the potency 
of one Colorado citizen is equal to nine in New York. 

"But if an election fails in the electoral colleges, the Presi- 
dent is elected in the House of Representatives; where Colo- 
rado's one Representative has one vote, and New York's 
thirty-three Representatives have but one vote; or Colorado, 
with 40,000, is equal to New York with 4,300,000 ; or one man 
in Colorado weighs as much in choosing a President as one 
hundred and seven men in New York; and so, if there is no 
election of a Vice-President, the Senate elects and the in- 
equality is the same. 

"In both cases nine millions (in twenty States) may elect 
a President over twenty-nine millions (in nineteen States) ; or 
if the twenty States are nearly divided in sentiment, and the 
nineteen States are unanimous, four and a half millions of 
voters may elect a President and Vice-President over thirty- 
three and a half millions! 

"All this results from the fact, that States are the factors 
in electing the executive. 

"But as each State appoints, as its legislature directs, and 
the counting of the electoral votes, certified by State author- 
ity, only is left to the two Houses of Congress, it has come 



374 SECESSION AND CONSTITUTIONAL LIBERTY 

to be decided in our day, that a fraudulent or illegal return 
by State officials may palm upon the whole country, by their 
act an executive, whom the country has not elected ; and it is 
held that the whole Union has no organic power to defeat the 
fraud of the officials of the State of Colorado ! and that thirty- 
eight millions cannot gainsay the fraudulent act of officers 
appointed by 40,000. Whether this be a right or wrong de- 
cision it shows the potentiality of a single State in making an 
executive for thirty-eight States — of 40,000 men to control 
40,000,000! or of one to defeat the will of 1,000. 

"That these results are not fanciful, the patent fact faces 
us to-day, that the present executive of the Union was elected 
by States, though he fell short by a quarter of a million of 
having a majority of the popular vote. However pleasant to 
some or unpleasant to others it may be, this is the consequence 
of having the election of an executive by States, rather than 
by popular vote. And in the choosing of electors, each State 
may consolidate its whole force as a State by a general elec- 
tion, and a majority of one vote for electors in New York, 
will give her solid State strength to her favorite. 

"3. Judiciary. How is it constituted ? Judges and all other 
officers are nominated by the President, and appointed by and 
with the advice and consent of the Senate. 

"Nomination comes from the President, whose election de- 
pends on the senatorial factor in the electoral college, which 
represents State equality, as well as on the representative fac- 
tor, which may not represent the popular strength of the State; 
or in the one event, may depend on the equal vote of the 
States in the House of Representatives. 

"Confirmation of the nomination is made by the States with 
equal voice in the Senate. 

"A like course of reasoning, as before adopted, will show 
that in many cases, a small popular minority in a majority of 
the States may appoint every judge and every officer of the 
United States against the will of an overwhelming popular 
majority; and this is due to the fact, tha,t States are the fac- 
tors in all official appointments. 



APPENDIX 23 375 

"Let me now call attention to some of the great functions 
of government. 

"Take the war power. No war can be declared but by 
the vote of Congress. If the House of Representatives agrees, 
it will result that the popular will in a large degree concurs. 
But if the Senate dissents, a necessary war may be prevented, 
by nine millions of people against twenty-nine millions. 

"Take the militia. It may be organized, armed and disci- 
plined under laws of Congress, but cannot be officered or 
trained but at the will of the States. Non-action by States 
would disband the militia. Const. U. S., art. 1, § 8, cl. 15. 

"Take the treaty power. The President by and with the 
advice and consent of the Senate (two-thirds concurring), 
may make treaties. Two-thirds of the States (fourteen mil- 
lions) may make a treaty, proposed by the President elected by 
a majority of States (nine millions) against the will of one- 
third of States (twenty-four millions) ; and one State more 
than one-third of the States (3,600,000) may defeat a neces- 
sary treaty advised by one State less than two-thirds of the 
States (thirty-five millions). 

"The amendment power. A recent very able writer (Mr. 
George Ticknor Curtis) has said that 'the process of amending 
the Constitution seems scarcely reconcilable with the hypothe- 
sis that the Constitution is a compact between independent sov- 
ereign States/ 

"Let me examine this question. On the threshold two 
things are obvious. 

"First. That the insertion of the clause in the Constitution, 
whereby amendments may be made without the unanimous 
consent of the States, implies, that without that clause, the 
framers of the Constitution knew no amendment could be 
made without such unanimity, and that a stipulation by unani- 
mous consent was needed to dispense with unanimity in the 
case of future amendments. This is a strong argument in 
support of the continuing entity and sovereign control over 
any changes in the Constitution by each and all the States. 

"Second. The powers of the co-pactors to agree to the 
making amendments without the consent of all, was a sover- 



376 SECESSION AND CONSTITUTIONAL LIBERTY 

eign power, which each could exercise without prejudice to 
itself in any other respect. 

"But it will be seen that the guards against detriment to 
the rights of each were made very stringent, and were put into 
the hands of the States; while the lack of unanimity provided 
for was necessary to prevent factious obstruction by one State 
to needful changes in a permanent system of union between so 
many States. 

"The proposal of amendments could be defeated by one 
State more than one- third of the States in the Senate, or by 
one more than one-third of the legislators of the several 
States. Const. U. S., art. 5. 

"When proposed, the ratification of the amendment could 
be defeated by one more than one-fourth of the States. 

"To state it numerically, ten States containing two millions 
of people could defeat an amendment ratified by twenty-eight 
States containing thirty-six millions of people ; or three-fourths 
(eighteen millions) of States could ratify, though one- fourth 
(twenty millions) of States rejected; but in this last case, for 
the protection of these populous States, two-thirds of the 
House of Representatives must have proposed it, where their 
voices could be prevalent over the smaller States. 

"These guards were considered ample, because requiring an 
extraordinary combination of populous and small States to 
fasten any amendment on the Constitution. 

"But there were certain fundamental questions, which were 
specially guarded, that no amendment as to the slave trade 
or taxation should be made prior to 1808 at all; and that the 
equal suffrage of States in the Senate should never be taken 
from a State, without its consent. 

"This last provision, fixing irrevocably, unless with the con- 
sent of each State, its equi-pollency in the Senate, is clear evi- 
dence that no change in this respect can be made but by a new 
compact, to which each State, as a pactor, must be a party. 
It proves the continuing and perpetual independence of the 
State, continued for its own protection against the vox majori- 
tatis, whether of population or of States. This provision 
proves more. If the State was not to be preserved as an equal 



APPENDIX 23 377 

in sovereignty despite a difference in population; if its dis- 
tinctive type of polity was not thus to be secured, there is no 
assignable reason for thus shielding its equality in the Sen- 
ate against all action, but at its own will and by its own con- 
sent. 

"This equality because of sovereignty is the only permanent 
and unchangeable principle in the whole Constitution. States 
can never be destroyed but by their own separate will. 

"Taking the whole clause it shows that amendment must 
always be on State ratification, either by its separate legisla- 
ture, or its convention (that representation of the civil body 
politic, which had originally ratified the Constitution). 

"Thus Colorado, with its 40,000 people, is secured from 
being robbed of its equality of power in the Senate of the Re- 
public by the voice of thirty-seven States and thirty-eight mil- 
lions of people. 

"States are, therefore, the factors in amending the compact. 

"From this review is it not obvious that without the con- 
tinuing existence of States and State governments, de jure and 
de facto, the Federal government would perish? 

"Suppose the legislatures refuse to elect Senators, where 
would be laws, treaties, officers? Suppose the States should 
not provide for electors, where would be the executive? Sup- 
pose only one-half should refuse, the government would fall. 
If the States in their full autonomy, as such are pulled down, 
the Federal Samson would be destroyed amid the ruins. 

"But another view may be presented which touches deli- 
cate ground — the States were designed to be guardians of the 
liberties of the people against the usurpations of the Federal 
Government. 

"I quote from the language of one of the early writers upon 
our federal system. 

"He argues, that if the representatives of the people in the 
general government betray their constituents, no resource 
would be left but in the existence of the original right of self- 
defense paramount to all forms of government — that this 
could be exerted better against the federal rulers, than those 
of a State. Tn a single State, if the persons intrusted with 



37& SECESSION AND CONSTITUTIONAL LIBERTY 

the supreme power become usurpers' . . . the people in their 
counties and cities 'having no distinct governments in each 
can take no regular measures for defense. The citizens rush 
tumultously to arms without concert, without system, with- 
out resource/ etc. 'But in a Confederacy, the people, without 
exaggeration, may be said to be entirely masters of their own 
fate. Power being almost always the rival of power, the gen- 
eral government will, at all times, stand ready to check the 
usurpations of the State governments: and these will have the 
same disposition toward the general government. ... If their 
rights are invaded by either, they (the people) can make use 
of the other, as the instrument of redress,' . . . Tt may safely 
be received as an axiom in our political system, that the State 
governments will, in all possible contingencies, afford com- 
plete security against invasions of the public liberty by the na- 
tional authority. . . . The legislatures will have better means 
of information' (than the people), 'they can discover the dan- 
ger at a distance ; and possessing all the organs of civil power, 
and the confidence of the people, they can at once adopt a regu- 
lar plan of opposition, in which they can combine all the re- 
sources of the community. They can readily communicate 
with each other in the different States; and unite their com- 
mon forces, for the protection of their common liberty. . . . 
If the federal army should be able to quell the resistance of 
one State, the distant States would have it in their power to 
make head with fresh forces,' And then after stating, that 
there would not be for a long time a large federal army, he 
adds : 'When will the time arrive, that the Federal Govern- 
ment can raise and maintain an army capable of erecting a des- 
potism over the great body of the people of an immense em- 
pire, who are in a situation, through the medium of their State 
governments, to take measures for their own defense, with all 
the celerity, regularity and system of independent nations? 
The apprehension may be considered as a disease, for which 
there can be found no cure in the resources of argument and 
reasoning.' 

"This powerful passage, written before the Constitution 
was ratified, and as an argument to a great State to do so; 



APPENDIX 23 379 

calling the government of the Union a Federal Government, 
and the Union proposed a Confederacy — and with cogent per- 
suasiveness showing how, under the proposed Constitution, 
the States, as independent nations, with all the organs of civil 
power and all the resources of the community at hand, could 
and should fight federal usurpers of popular liberties, is from 
the 28th number of the Federalist, and from the splendid 
pen of Alexander Hamilton to the people of New York. 

"The same views are pressed by Mr. Madison in the 46th 
number of the Federalist. 'But ambitious encroachments of 
the Federal Government on the authority of the State gov- 
ernments would not excite the opposition of a single State or 
of a few States only ; they would be signals of general alarm. 
Every government would espouse the common cause. Plans 
of resistance would be concerted. The same combination, in 
short, would result from an apprehension of the federal as 
was produced by the dread of a foreign yoke/ etc., etc." * 

"There is yet another view of this subject. It results from 
the nature of all government, freely and voluntarily estab- 
lished, -that there is no power to change, except the power 
which formed it. It will scarcely be denied by any one, that 
the Confederation was a government strictly of the States, 
formed by them as such, and deriving all its powers from their 
consent and agreement. What authority was there superior 
to the States, which could undo their work? What power 
was there, other than that of the States themselves, which 
was authorized to declare that their solemn league and agree- 
ment should be abrogated? Could a majority of the people 
of all the States have done it? If so whence did they derive 
that right? Certainly not from any agreement among the 
States, or the people of all the states; and it could not be le- 
gitimately derived from any other source. If, therefore, they 
had exercised such a power, it would have been a plain act of 
usurpation and violence. Besides, if we may judge from the 
apportionment of representatives as proposed in the Consti- 

*John Randolph Tucker, "Relations of the U. S. to Each Other," pp. 
54-65; 1877. 



380 SECESSION AND CONSTITUTIONAL LIBERTY 

tution, a majority of the people of all the States were to be 
found in the four States of Massachusetts, New York, Penn- 
sylvania and Virginia, so that upon this idea, the people of 
less than one-third of all the States could change the articles 
of Confederation, although those articles expressly provided 
that they should not be changed without the consent of all 
the States! There was then no power superior to the power 
of the States; and consequently there was no power which 
could alter or abolish the government which they had estab- 
lished. If the Constitution has superseded the Articles of 
Confederation it is because the parties to those articles have 
agreed that it should be so. If they have not so agreed, there 
is no such Constitution and the Articles of Confederation are 
still the only political tie among the States. We need not, 
however, look beyond the attestation of the Constitution itself 
for full evidence upon this point. It professes to have been 
'done by the unanimous consent of the States present/ etc., 
and not in the name or by the authority of 'the people of the 
United States.' But it is not the mere framing of a constitu- 
tion which gives it authority as such. It becomes obligatory 
only by its adoption and ratification; and surely that act, I 
speak of free and voluntary government, makes it the Con- 
stitution of those only who do adopt it. Let us ascertain then, 
from the authentic history of the time, by whom our own 
constitution was adopted and ratified. 

"The resolution of Congress already quoted, contemplates 
a convention 'for the sole and express purpose of revising the 
articles of confederation/ and reporting suitable 'alterations 
and provisions therein/ The proceedings of the convention 
were to be reported to Congress and the several legislatures, 
and were to become obligatory only when 'agreed to in con- 
gress and confirmed by the states/ This is precisely the course 
of proceeding prescribed in the articles of confederation. Ac- 
cordingly, the new constitution was submitted to Congress; 
was by them approved and agreed to, and was afterwards, in 
pursuance of the recommendation of the convention, laid be- 
fore the conventions of the several States, and by them ratified 
and adopted. In this proceeding each State acted for itself, 



APPENDIX 23 381 

without reference to any other State. They ratified at dif- 
ferent periods ; some of them unconditionally, and others with 
provisos and propositions for amendment. This was cer- 
tainly state action in as distinct a form as can well be im- 
agined. Indeed it may well be doubted whether any other 
form of ratification, than by the States themselves would have 
been valid. At all events none other was contemplated, since 
the Constitution itself provides that it shall become obligatory 
when ratified by 'nine states,' between the states ratifying the 
same. The 'people of the United States/ as an aggregate mass 
are nowhere appealed to for authority and sanction to that 
instrument. ,, * 

Mr. Madison wrote : 

"Some exulting references have been drawn from the 
change noted in the Journal of the Convention, of the word 
National into 'United States.' The change may be accounted 
for by a desire to avoid the misconception of the former, the 
latter being preferred as a familiar caption. That the change 
could have no effect on the real character of the Govt, was 
& is obvious; this being necessarily deduced from the actual 
structure of the Govt, and the quantum of its powers." f 

It is not easy to conceive how even the lapse of years could 
have so erased Mr. Madison's recollections on this point, which 
was the pivot upon which hinged the disputes of the contend- 
ing parties in the Federal Convention. Prior to that Con- 
vention, indeed, the word was so loosely used to denote mat- 
ters in reference to the United States in contradistinction to 
the several States, that it had slight significance; e. g., it was 
used prior to the Confederation and throughout the Confed- 
eration in this sense without other political significance: 

". . . is at least so far probable from the embarrassments 
which characterize the present state of our national affairs." % 

* Upshur, "Review of Story." 
t Madison to N. P. Trist, December, 1831. 

i Proceedings of Commissioners to remedy defects of the Federal Gov- 
ernment, Annapolis. September 11, 1786. Elliot's "Debates," Vol. I, p. 118. 



382 SECESSION AND CONSTITUTIONAL LIBERTY 

"Your commissioners decline an enumeration of those na- 
tional circumstances/ ' * 

Numerous examples might be given. 

But when the Convention sat, the word was made the watch- 
word and shibboleth of that party to which Mr. Madison be- 
longed. Mr. Randolph who presented the Virginia Resolu- 
tions, said: 

"The resolutions from Virginia must have been adopted 
on the supposition that a federal government was impractica- 
ble." f 

Mr. C. C. Pinckney said : 

". . . he supposes that the Convention have already deter- 
mined virtually, that the federal government cannot be made 
efficient. A national government being therefore the object, 
this plan must be pursued." X 

Mr. Madison said: 

". . . It is evident if we do not radically depart from a fed- 
eral plan, we shall share the fate of ancient and modern con- 
federacies." § 

Mr. Madison indeed seeks to discredit Mr. Yates's "Min- 
utes." There is, however, no good reason to doubt their sub- 
stantial accuracy, supported as they are by Mr. Luther Mar- 
tin's statement and the Journals of the Convention. In fact, 
Mr. Madison in other places, makes much the same statement 
as here credited to him by Mr. Yates. Therefore while Mr. 
Madison is entirely correct in stating "That the change could 
have no effect on the real character of the Govt, was & is obvi- 
ous ; this being necessarily deduced from the actual structure 
of the Govt, and the quantum of its powers," nevertheless the 
impression he seeks to produce is unwarranted. While the 

* Ibid., ensuing paragraph. 

t Eliot's "Debates," Vol. I, p. 415; Wash., 1836; Yates's "Minutes." 

tlbid. 

§ Ibid. 



APPENDIX 23 383 

change could have no effect on the real character of the gov- 
ernment, the substitution of the words "federal" and "United 
States," serves to indicate the conception of its character held 
by the party who passed it, and is as such important. The 
mere fact that the substitution was thought necessary, indi- 
cates that it was not immaterial. 

"It was moved and seconded to erase the word 'national' 
and to substitute the words 'United States' in the 4th resolu- 
tion; which passed in the affirmative." * 

"Mr. Ellsworth, seconded by Mr. Gorham, moves to alter 
it . . . This alteration, he said, would drop the word national, 
and retain the proper title 'the United States.' . . . 

"The motion of Mr. Ellsworth was acquiesced in, nem. 
con" f 

"The second resolution 'That the national legislature ought 
to consist of two branches,' being taken up, the word 'national' 
struck out, as of course." % 

"At the threshold of the business, we clearly discern that 
the convention was apprized of the meaning of words. One 
resolution asserts that a government merely federal would not 
answer, and that a supreme national government ought to be 
established. The rival resolution rejects the words national 
and supreme, as incompatible with a federal union. One avails 
itself of the intimation from Congress in favour of a national 
government, and rejects the intimations of the same Congress 
in favour of a federal government; the other prefers the lat- 
ter intimations, because they were legitimated by the states, 
and rejects the former, because it was rejected by the states. 
These adverse opinions were evidently dictated, one by the po- 
litical opinion already invented, of a consolidated nation; the 
other, by the actual existence of United States. The contrast 
between the two preliminary resolutions in a very important 
view, depends on a single word. One proposes 'a supreme 
legislative, judiciary, and executive/ the other 'a legislative, 
executive, and judiciary,' excluding the word supreme. This 

* June 25, 1787. Elliot's "Debates," Vol. I, p. 187; Wash., 1836. 
t Madison's Debates; Elliot's "Debates," Vol. V, p. 214. 
tlbid. 
1—25 



384 SECESSION AND CONSTITUTIONAL LIBERTY 

word was adopted as suitable for the proposed national gov- 
ernment, and rejected, as inconsistent with the federal form 
of government, to which the states had confined their depu- 
ties. The adoption and rejection conspire to furnish us with 
a definition of this formidable word, both by the national and 
federal parties in the convention. The sense in which both 
of these parties understood it, caused its exclusion from the 
constitution, as inapplicable to a federal government. The 
advocates for a national government proposed to invest that 
form of government with a supreme power to 'construe the 
articles of the union.' The advocates for a federal govern- 
ment originally proposed to withhold supremacy from the leg- 
islative, judiciary, and executive, and though they at first 
failed, finally succeeded." * 

"The original difference between the leaders of the federal 
and anti-federal parties was substantial. The federal leaders 
were in favor of a government founded upon the principle 
of a balance of power between the departments of one govern- 
ment; their opponents, of one founded upon its division be- 
tween government and the people, and between two govern- 
ments. The first party were inclined to endow the general 
government with greater powers to be taken from the people 
and the states, than the second; and to check these powers 
by balancing its departments; and the second, to control the 
general government, by trusting it only with powers affecting 
the general interest and reserving considerable powers to the 
people and to the states. The first party conceived that some- 
thing like the English system of balancing power, supported 
by the principle of election, would secure a free government; 
the second was of opinion that this experiment had never suc- 
ceeded; that election could not control power, when it be- 
stowed too much; and that its division was a safer ally of 
election, than its balance. 

"The constitution of the United States was founded chiefly 
upon the principle of a division of power, but the party which 

*John Taylor, of Caroline, "New Views of the Constitution," pp. 21, 
22; 1823. For a full summary on this point see the same work, pp. 13 
et seq. 



APPENDIX 23 385 

had lost the principle of the balance, became its administra- 
tors." * 

"There is some similarity between a division and a balance 
of power. The latter cannot exist without the former, but its 
object is to make great masses of power equal, whereas the 
object of the former is to prevent their existence. An essen- 
tial principle of the balances, is a division of power between 
kings, lords and commons; of our system, between the state 
and general governments." f 

The popular apprehension corroborates the nature of the 
compact. 

"Not by command, or appointment, expressive of an author- 
ity which is not vested in any man in the Union ; but in com- 
pliance with the pious recommendation of our Federal Head, 
a language more congenial with our notion of liberty, we are 
now assembled in the house of worship. 

"The design of the President's proclamation is, to unite the 
hearts and voices of the millions in Federated America to 
render a voluntary tribute of praise and gratitude to AL- 
MIGHTY GOD, for his goodness to us as a people." $ 

"But 'constitutions of government, which unite, and by their 
union establish liberty with order/ are the basis of political 
happiness, the palladium of national peace and security. Such 
are the American constitutions. Formed by the collected wis- 
dom of the respective states, examined by the jealous and 
watchful eye of the sons of freedom, and established by the 
free suffrages of the people, . . . " § 

"And may anarchy never rear its hydra-head in United 
America. May order, liberty and peace, union, harmony, and 
love, long reign in this happy land. Here may free republi- 
can governments, supported by the eternal pillars of truth and 

♦Letters by John Taylor, of Caroline, to Thomas Ritchie, Number II, 
Richmond, 1869. 

t Ibid., Number III. 

t Samuel Kendal, Sermon on the Day of National Thanksgiving, Feb. 

19, 1795, P. 5- 
§ Ibid., p. 18. 



386 SECESSION AND CONSTITUTIONAL LIBERTY 

justice, mock the assaults of internal and external ene- 
mies, . . ." * 

APPENDIX 24 
(Page 75) 

The political effects of Mr. Morris's resolution were well 
understood, as shown in the Debate of the Virginia Ratifying 
Convention, by Mr. Henry's attack and its rebuttal by Messrs. 
Madison and Lee. f 

APPENDIX 25 
(Page 77) 

"As a difference of meaning between 'a confederation and 
a constitution' has been contended for, it ought not to be over- 
looked, that the deputies at Annapolis, applied the term con- 
stitution to the confederation of 1777." % 



APPENDIX 26 
(Page 78) 

"The honorable gentleman says compacts should be bind- 
ing, and that the Confederation was a compact. It was so; 
but it was a compact that had been repeatedly broken by every 
state in the Union; and all the writers on the laws of nations 
agree that, when the parties to a treaty violate it, it is no 
longer binding." § 

The American States had good reason to be familiar with 
this doctrine of the law of nations : it had lately been appealed 

* Ibid., p. 30. 

t Vide, Appendix 21B. 

t John Taylor, of Caroline, "Views of the Constitution," p. 13, 1823. 

§ Charles C. Pinckney, in Ratification Debates of South Carolina. 



APPENDIX 26 387 

to in bar of their claims against Great Britain's non-fulfilment 
of treaty stipulations, 

"The engagements entered into by a treaty ought to be mu- 
tual, and equally binding on the respective contracting parties. 
It would therefore be the height of folly as well as injustice, 
to suppose one party alone obliged to a strict observance of 
the public faith, while the other might remain free to deviate 
from its own engagements as often as convenience might ren- 
der such deviation necessary.' , * 

"No principle is better established by the laws of nations, 
than, in case of existing treaties, if one party violates any 
one or more of the stipulations, the injured party has a right in 
consequence of such violation, to consider the whole void." f 

Of course there are two sides to this principle so confidently 
announced. One may have an "inner light," a "higher law" 
than the law of nations (or any other law), a "New England," 
or, other special conscience ; e. g., by the following extract one 
may learn that a right existing merely by compact or bar- 
gain is no right at all : 

"The first amendment proposed, relates to the apportion- 
ment of Representatives among the slave holding States, This 
cannot be claimed as a right. Those States are entitled to the 
slave representation by a constitutional compact — It is there- 
fore merely a subject of agreement." % 

So Mr. Seward had his "higher law" than the Constitution. 
So Mr. Emerson had his "inner light." 

" Tt is really of little importance what blunders in statement 
we make, so only that we make no wilful departure from the 
truth. . . . Why should I give up my thought, because I can- 
not answer an objection to it? . . . With consistency, a great 

* Marquis of Carmarthen, 1785. 

t Speech of Uriah Tracy in Senate of U. S., on bill to declare void the 
treaty between the U. S. and . . ." Connecticut Courant, August 27, 1796. 

t Proceedings of a Convention of Delegates from Massachusetts, Con- 
necticut and Rhode Island, &c, Convened at Hartford, 1814; Newburyport, 
1815. 



388 SECESSION AND CONSTITUTIONAL LIBERTY 

soul has simply nothing to do. . . . Speak what you think 
now in hard words, and to-morrow speak what to-morrow 
thinks in hard words again, though it contradict everything 
you said to-day. ... I hope in these days we have heard the 
last of conformity and consistency. Let the words be . . . 
ridiculous henceforward/ This is not meant for mere theory. 
We are told often that * Virtue is the spontaneity of the will. 
. . . Our spontaneous action is always the best. . . . The 
only right is what is after my own constitution, the only wrong 
what is against it/ 

"The passages quoted in the last paragraph are of great 
importance; for they did more than any others to abolish 
slavery. Its defenders appealed to the Bible as confidently as 
to the national Constitution; but the Garrisonians declared 
with Emerson, that 'The highest virtue is always against the 
law/ " * 

Mr. Chas. Francis Adams (et al.) is also of opinion that 
the binding powers of a compact may lapse [for one of the 
parties] when such party is firmly established in the benefits 
therefrom resulting ; vide Appendix 40. 



APPENDIX 27 

{Page 78) 

"The compound Govt, of the U. S. is without a model, and 
to be explained by itself, not by similitudes or analogies." f 

"And having in no model the similitudes & analogies ap- 
plicable to other systems of Govt, it must more than any other 
be its own interpreter, according to its text & the facts of the 
case." \ 

* Frederic May Holland, "Liberty in the 19th Century," p. 133 ; N. Y., 
1899. 

t Madison MSS., September 17, 1829. Hunt's Edition of "Madison," 
Vol. IX, p. 355- 

% Madison, Letter to Edward Everett, August 28, 1830. 



APPENDIX 28 389 

"Our political system is admitted to be a new creation — a 
real nondescript. Its character therefore must be sought with- 
in itself; not in precedents, because there are none." * 

APPENDIX 28 

(Page 80) 

Remembering Mr. Madison's often repeated injunction 
that "it [the Constitution] must ... be its own interpreter 
according to its text/' there is no point as to which it is clearer 
or more positive than in negation of a constitutional power 
of a majority of the people of the United States as one peo- 
ple, t 

APPENDIX 29 

(Page 81) 

Repeated attempts to make coercion in some form a part 
of the pact were rejected by large majorities. 

"Against this conclusion there can be raised but one objec- 
tion, that the States have surrendered or transferred the right 
in question. If such be the fact, there ought to be no difficulty 
in establishing it. The grant of the powers delegated is con- 
tained in a written instrument, drawn up with great care, and 
adopted with the utmost deliberation. It provides that the 
powers not granted are reserved to the States or the people. 
If it be surrendered, let the grant be shown, and the contro- 
versy will be terminated; and, surely, it ought to be shown, 
plainly and clearly shown, before the States are asked to admit 
what, if true, would not only divest them of a right which, 
under all its forms, belongs to the principal over his agent, 
unless surrendered, but which cannot be surrendered without 
in effect, and for all practical purposes, reversing the relation 

* Madison. 

t Vide ante, Chapter IV, pp. 56-74 ; opinions of Judge Baldwin, etc. ; 
also Appendices 22, 23. 



390 SECESSION AND CONSTITUTIONAL LIBERTY 

between them; putting the agent in the place of the principal, 
and the principal in that of the agent; and which would de- 
grade the States from the high and sovereign condition which 
they have ever held, under every form of their existence, to 
be mere subordinate and dependent corporations of the Gov- 
ernment of its own creation. But, instead of showing any 
such grant, not a provision can be found in the Constitution 
authorizing the General Government to exercise any control 
whatever over a State by force, by veto, by judicial process, or 
in any other form — a most important omission, designed, and 
not accidental, and as will be shown in the course of these re- 
marks, — omitted by the dictates of the profoundest wisdom. 
"The journal and proceedings of the Convention which 
formed the Constitution afford abundant proof that there 
was in the body a powerful party, distinguished for talents 
and influence, intent on obtaining for the General Govern- 
ment a grant of the very power in question, and that they at- 
tempted to effect this object in all possible ways, but, fortu- 
nately, without success. The first project of a Constitution 
submitted to the Convention (Governor Randolph's) embraced 
a proposition to grant power 'to negative all laws contrary, 
in the opinion of the National Legislature, to the articles of 
the Union, or any treaty subsisting under the authority of the 
Union; and to call forth the force of the Union against any 
member of the Union failing to fulfil its duty under the ar- 
ticles thereof.' The next project submitted (Charles Pinck- 
ney's) contained a similar provision. It proposed, that the 
Legislature of the United States should have the power to 
revise the laws of the several States that may be supposed to 
infringe the powers exclusively delegated by this Constitu- 
tion to Congress, and to negative and annul such as do. The 
next was submitted by Mr. Patterson, of New Jersey, which 
provided, 'if any State, or body of men in any State shall op- 
pose or prevent the carrying into execution such acts or trea- 
ties' (of the Union), the Federal Executive shall be authorized 
to call forth the powers of the confederated States, or so much 
thereof as shall be necessary to enforce, or compel the obedi- 
ence to such acts, or observance of such treaties.' General 



APPENDIX 29 39i 

Hamilton's next succeeded, which declared 'all laws of the 
particular States contrary to the Constitution or laws of the 
United States, to be utterly void; and, the better to prevent 
such laws being passed, the Governor or President of each 
State shall be appointed by the General Government, and shall 
have a negative on the laws about to be passed in the State of 
which he is Governor or President.' 

"At a subsequent period, a proposition was moved and re- 
ferred to a committee, to provide that 'the jurisdiction of the 
Supreme Court shall extend to all controversies between the 
United States and any individual State'; and, at a still later 
period, it was moved to grant power 'to negative all laws 
passed by the several States interfering, in the opinion of the 
Legislature, with the general harmony and interest of the 
Union, provided that two thirds of the members of each House 
assent to the same,' which, after an ineffectual attempt to com- 
mit, was withdrawn. 

"I do not deem it necessary to trace through the journals 
of the Convention the fate of these various propositions. It 
is sufficient that they were moved and failed, to prove conclu- 
sively, in a manner never to be reversed, that the Convention 
which framed the Constitution, was opposed to granting the 
power to the General Government in any form, through any 
of its departments, legislative, executive, or, judicial, to co- 
erce or control a State, though proposed in all conceivable 
modes, and sustained by the most talented and influential mem- 
bers of the body." * 

Randolph, who offered the 6th Resolution, "Resolved, That 
. . . the national legislature ought to be empowered ... to 
call forth the force of the Union against any member of the 
Union failing to fulfil its duty under the articles thereof, " 
altered his opinion decisively. In view of the reception of 
his resolution, his doing so is not of much importance to the 
point. 

"It was then moved and seconded to postpone the consider- 
ation of the last clause of the 6th resolution, namely, — 

* Calhoun's Letter to Gen. Hamilton, on State Interposition, August 28, 
1832, "Works," Vol. VI, pp. IS3-I56. 



392 SECESSION AND CONSTITUTIONAL LIBERTY 

" 'To call forth the force of the Union against any member 
of the Union failing to fulfil its duty under the articles 
thereof.' 

"On the question to postpone the consideration of the said 
clause, it passed in the affirmative." * 

"But although coercion is an indispensable ingredient, it 
ought not to be directed against a state as a state . . . Should 
we arm citizens against citizens, and habituate them to shed 
kindred blood ?" etc.f 

"Coercion he pronounced to be impracticable, expensive, 
cruel to individuals." % 

Hamilton, both in the Federal and the New York State Con- 
ventions, spoke against any coercion of States. 

"But how can this force [coercion] be exerted on the states 
collectively? It is impossible. It amounts to a war between 
the parties." § 

"If you make requisitions, and they are not complied with, 
what is to be done ? It has been observed, to coerce the states 
is one of the maddest projects that was ever devised. A fail- 
ure of compliance will never be confined to a single state. This 
being the case, can we suppose it wise to hazard a civil war? 
Suppose Massachusetts, or any large state, should refuse, and 
Congress should attempt to compel them, would they not have 
influence to procure assistance, especially from those states 
which are in the same situation as themselves? What picture 
does this idea present to our view? A complying state at 
war with a non-complying state; Congress marching the 
troops of one state into the bosom of another; this state col- 
lecting auxiliaries, and forming, perhaps, a majority against 
its federal head. Here is a nation at war with itself. Can 
any reasonable man be well disposed towards a government 
which makes war and carnage the only means of supporting 
itself — a government that can exist only by the sword ? Every 

* Debates, May 31, 1787. 

t Randolph, Letter to Speaker of House of Delegates of Virginia, 
October 10, 1787. 

t Randolph, Debates in Federal Convention, June, 1787. 
§ Hamilton, June 18, in Federal Convention. 



APPENDIX 29 393 

such war must involve the innocent with the guilty. This sin- 
gle consideration should be sufficient to dispose every peaceable 
citizen against such a government. 

"But can we believe that one state will ever suffer itself to 
be used as an instrument of coercion? The thing is a dream; 
it is impossible. Then we are brought to this dilemma — either 
a federal standing army is to enforce the requisitions, or the 
federal treasury is left without supplies, and the government 
without support. What, sir, is the cure for this great evil? 
Nothing, but to enable the national laws to operate on indi- 
viduals, in the same manner as those of the states do. This 
is the true reasoning upon the subject, sir. The gentlemen 
appear to acknowledge its force; and yet, while they yield to 
the principle, they seem to fear its application to the gov- 
ernment/ ' * 

"Hence we see how necessary for the Union is a coercive 
principle. No man pretends the contrary; we all see and feel 
this necessity. The only question is, Shall it be a coercion of 
law, or a coercion of arms? There is no other possible alter- 
native. Where will those who oppose a coercion of law come 
out? Where will they end ? A necessary consequence of their 
principle is a war of the states one against the other. I am 
for coercion by law — that coercion which acts only upon delin- 
quent individuals. This Constitution does not attempt to co- 
erce sovereign bodies, states in their political capacity. No 
coercion is applicable to such bodies, but that of an armed 
force. If we should attempt to execute the laws of the Union 
by sending an armed force against a delinquent state, it would 
involve the good and the bad, the criminal and guilty, in the 
same calami ty." f 

What Mr. Madison may have really wished is difficult to 
say. According to his letter of December 23, 1832, to N. P. 
Trist, we must suppose that he was personally in favour of the 
power of coercion: 

* Hamilton, in New York Ratifying Convention, June 20, 1788. 

f Oliver Ellsworth, in the Connecticut Convention, January 7, 1778. 



394 SECESSION AND CONSTITUTIONAL LIBERTY 

"It is remarkable how closely the nullifiers who make the 
name of Mr. Jefferson the pedestal for their collossal heresy, 
shut their eyes and lips, whenever his authority is ever so 
clearly and emphatically against them. You have noticed 
what he says in his letters to Monroe & Carrington, Pages 43 
& 203, vol. 2, with respect to the powers of the old Congress 
to coerce delinquent States, and his reasons for preferring for 
the purpose a naval to a military force ; and moreover that it 
was not necessary to find a right to coerce in the Federal Ar- 
ticles, that being inherent in the nature of a compact." 

But this was not his language in Convention. 

"It was generally agreed that the objects of the Union 
could not be secured by any system founded on the principle 
of a confederation of sovereign states. A voluntary observa- 
tion of the federal law by all the members could never be 
hoped for. A compulsive one could evidently never be re- 
duced to practice, and if it could, involved equal calamities to 
the innocent and the guilty . . . and in general, a scene re- 
sembling much more a civil war than the administration of 
a government. 

"Hence . . . the alternative of a government which instead 
of operating on the States, should operate on the individuals 
composing them." * 

"The last clause of the sixth resolution, authorizing an exer- 
tion of the force of the whole against a delinquent state, came 
next into consideration. 

"Mr. Madison observed, that the more he reflected on the 
use of force, the more he doubted the practicability, the jus- 
tice, and the efficacy of it, when applied to people collectively, 
and not individually. A union of the states containing such an 
ingredient seemed to provide for its own destruction. The use 
.of force against a state would look more like a declaration of 
war than an infliction of punishment, and would probably be 
considered by the party attacked as a dissolution of all previ- 
ous compacts by which it might be bound. He hoped that 
such a system would be framed as might render this recourse 

* Madison to Jefferson, October 24, 1787. 



APPENDIX 30 395 

unnecessary, and moved that the clause be postponed. This 
motion was agreed to, nem. con. 3 ' * 

APPENDIX 30 

{Page 81) 

Mr. Madison's solution of the difficulty was a negative by 
the United States on State legislation. Even this was not 
granted. 

"Mr. Pinckney moved 'That the national legislature should 
have authority to negative all laws which they should judge 
to be improper' . . . 

"Mr. Madison seconded the motion. He could not but re- 
gard an indefinite power to negative legislative acts of the 
states as absolutely necessary to a perfect system. Experi- 
ence had evinced a constant tendency in the states to encroach 
on the federal authority; to violate national treaties; to in- 
fringe the rights and interests of each other; to oppress the 
weaker party within their respective jurisdictions. A nega- 
tive was the mildest expedient that could be devised for pre- 
venting these mischiefs. The existence of such a check would 
prevent attempts to commit them. Should no precaution be 
engrafted, the only remedy would be in an appeal to coercion. 
Was such a remedy eligible? Was it practicable? Could the 
national resources, if exerted to the utmost, enforce a national 
decree against Massachusetts, abetted, perhaps, by several of 
her neighbors ? It would not be possible. A small proportion 
of the community, in a compact situation, acting on the de- 
fensive, and at one of its extremities, might at any time bid 
defiance to the national authority. Any government for the 
United States, formed on the supposed practicability of using 
force against the unconstitutional proceedings of the states, 
would prove as visionary and fallacious as the government of 
Congress." f , 

The motion passed in the negative, — 3 Ayes, 7 Noes. 

* Debates in the Federal Convention, May 31, 1787. 

ilbid., June 8, 1787. J 



396 SECESSION AND CONSTITUTIONAL LIBERTY 

APPENDIX 30 

Instead 

"It was moved and seconded to agree to the following reso- 
lution, namely: — Resolved, That the legislative acts of the 
United States, made by virtue and in pursuance of the articles 
of union, and all treaties made and ratified under the author- 
ity of the United States, shall be the supreme law of the re- 
spective states, as far as those acts or treaties, shall relate to 
the said states, or their citizens and inhabitants; and that the 
judiciaries of the several states shall be bound thereby in their 
decisions, any thing in the respective laws of the individual 
states to the contrary notwithstanding. 

"It passed unanimously, in the affirmative." 

The difference in principle between this clause which passed 
unanimously, and Mr. Pinckney's motion (supported by Mr. 
Madison), "that the national legislature should have authority 
to negative all laws which it should judge to be improper," for 
which only three States voted, lies in two most important 
points. First, that the States are bound, not by the judgment 
of the national legislature as to what is proper, but by the 
constitutional provisions; second, that, in case of a difference 
of opinion between a State and the United States as to 
whether or no a "legislative act of the United States" is "made 
by virtue and in pursuance of the articles of union," and 
therefore whether it is or is not "the supreme law. of the re- 
spective states, by which the several states shall be bound," 
no authoritative arbiter is by this clause provided ; it is no more 
by it stated that such a final power of judgment lies in the 
government of the United States than that it lies in the re- 
spective State governments; the clause is in its effects merely 
a declaratory one; it states the normal relation of the states 
to the general government; it provides no remedy for a dis- 
turbance of that relation, as was desired by Mr. Madison. 
No additional power of coercion is thereby yielded to the gen- 



APPENDIX 30 397 

eral government over the respective states beyond that pos- 
sessed by the Confederation. The states are morally bound 
to obey the provisions of the Constitution, but so were they 
those of the Confederation. But they were unwilling to leave 
the construction of those provisions to the general government 
they were creating. This power refused is certainly the most 
characteristic function of sovereignty : an additional proof, if 
such be needed, that they did not divest themselves of their 
original several sovereignty.* 

"On the 29th of May, 1787, the convention was organized, 
and Mr. Randolph, of Virginia, offered sundry resolutions 
resuming the word national, though it had been rejected by 
all the states, and proposing 'that a national legislature shall 
have the right to legislate in all cases in which the harmony 
of the United States may be interrupted by the exercise of in- 
dividual legislation, and to negative all laws passed by the 
several states, contravening, in the opinion of the national 
legislature, the articles of the union, or any treaty under the 
union/ The resolutions also proposed 'a national executive 
and a national judiciary; that the executive and a convenient 
number of the national judiciary ought to compose a council 
of revision, with authority to examine every act of the na- 
tional legislature, before it shall operate, and every act of a 
particular legislature, before a negative thereon shall be final ; 
and that the dissent of the said council shall amount to a re- 
jection, unless the act of the national legislature be again 
passed, or that of a particular legislature be again negatived 
by of the members of each branch.' 

"It is worthy of particular observation, that in this project, 
the constructive supremacy now claimed for the federal gov- 
ernment 'over the articles of the union,' was proposed to be 
given to a national government; because the actual considera- 
tion of this identical power, and its absence from the con- 
stitution as it was finally adopted, seems to be irresistible evi- 
dence that it does not exist. Throughout Mr. Randolph's 
resolutions, fifteen in number, the word national is adopted, 

* Vide John Taylor, of Caroline, "New Views on the Constitution," 
pp. 17 et seq.; Washington, 1823, for discussion on this point. 



398 SECESSION AND CONSTITUTIONAL LIBERTY 

and the word Congress rejected, except in reference to the 
Congress under the confederation of 1777, proving that the 
word was applicable to a federal union, but not to a national 
government. 

"The proposed national form of government was ultimately 
renounced or rejected, but the negative power over state laws 
with which it was invested was much less objectionable than 
now constructively contended for on behalf of the federal 
government. The president was to be one of a council of re- 
vision, and the influence of the states in his election might 
have afforded to them some feeble security, a little better than 
could be expected from a council of revision composed of a few 
federal judges. Both the legislative branches which were to 
pronounce the first veto upon state laws, were also to be ex- 
posed to popular influence, and might feel all the responsibility 
of which a body of men are susceptible in extending its own 
power by its own vote. A judicial veto, as now contended for, 
is exposed to no responsibility whatever. The council of re- 
vision, with the president at its head, were only to be con- 
trolled by more than a majority of the national legislature. 
This was evidently a better security for the small states than 
a power in a majority of Congress to abrogate state laws. 
But all these alleviations of the power in a national form of 
government to negative state laws were unsuccessful, because 
the principle itself, however modified, was inconsistent with 
the federal form adopted. It can never be conceived that the 
principle of a negative over state laws, audibly proposed and 
rejected, had silently crept into the constitution. This was 
quite consistent with the national form of government pro- 
posed, but quite inconsistent with the federal form adopted. 
The project for a national form of government was deduced 
from the doctrine, as we shall hereafter see, that the declara- 
tion of independence had committed the gross blunder of mak- 
ing the states dependent corporations; that it was in fact a 
declaration of dependence. When this doctrine failed in the 
convention, the national negative over state laws died with it. 
Revived by construction, it assumes a far more formidable and 
consolidating aspect than as it was originally offered, because 



APPENDIX 30 399 

the usurped negative over state laws, by a majority of a court 
or of Congress, would not have its malignity to the states 
alleviated by the checks to which the project itself resorted. 
Without these checks, even the advocates for a national form 
of government thought such a negative intolerable. The proj- 
ect contemplated a mixed legislative, executive, and judicial 
supremacy over state laws, so that one department of this 
sovereignty, like that of the English, might check the other, 
in construing 'the articles of the union,' and did not venture 
even to propose that a government should be established, in 
which a single court was to be invested with a supreme power 
over these articles, or the constitution. The idea seems to be 
a political monster never seen in fable or in fact. 

"On the same day, Mr. C. Pinckney offered a draft for a 
federal 'constitution/ It recognized the people of the several 
states; proposed 'that the style of the government should be 
the United States of America; that the legislative power 
should be vested in a Congress, to be chosen by the people of 
the several states ; enumerated limited powers to be exercised 
by this Congress ; proposed a president of the United States ; 
and that the legislature of the United States should have power 
to revise the laws of the several states that may be supposed to 
infringe the powers exclusively delegated to Congress, and to 
negative and annul such as do/ 

"This project for a form of government being somewhat at 
enmity with the resolutions, hostilities between them forth- 
with commenced, and the resolutions obtained successive vic- 
tories over a nominal rival, during the greater portion of the 
time expended by the convention. The journal, however, is 
too obscure to supply us with a history of a controversy which 
related only to the form of a national government mutually 
advocated. We do not find in the constitution the negative 
over state laws proposed both in the resolutions and the draft. 
As it was distinctly proposed by both, it must have been ma- 
turely considered and doubly rejected. The reasons of these 
rejections were, that though a supreme power of construction, 
was consistent with, and might have been intrusted to a gov- 
ernment throughout responsible to one people or nation, it was 

VOL. 1—26 



400 SECESSION AND CONSTITUTIONAL LIBERTY 

inconsistent with and could not therefore be intrusted to a 
federal form of government, or any of its departments. And 
hence when the federal form of government prevailed over 
the national form, the alteration of the federal articles was 
exclusively limited to the modes prescribed, and not extended 
to a supreme power of construction in the federal government 
or any of its departments. The constitution was not intended 
to be an alembick, fraught with heterogeneous principles, to 
condense the tortuosities of construction, and distil from taci- 
turnity a supreme power of construction, and consequently a 
negative upon state legislation. 

"May 30, Mr. Randolph, seconded by Mr. G. Morris, moved 
'that an union of states merely federal will not accomplish the 
objects proposed by the articles of confederation, namely, 
common defence, security of liberty, and general welfare ;' and 
by Mr. Butler, seconded by Mr. Randolph, 'that a national 
government ought to be established, consisting of a supreme 
legislative, judiciary, and executive.' In opposition to this 
resolution it was moved, 'that in order to carry into execution 
the design of the states in forming this convention, and to ac- 
complish the objects proposed by the confederation, a more 
effective government, consisting of a legislative, judiciary, and 
executive, ought to be established/ excluding the words na- 
tional and supreme. But it was resolved 'that a national gov- 
ernment ought to be established, consisting of a supreme legis- 
lative, judiciary, and executive.' The collision between these 
resolutions, and consequently the debate, was produced by the 
words national and supreme. Massachusetts, Pennsylvania, 
Delawarer Virginia, North-Carolina, and South-Carolina, 
voted for this resolution, Connecticut against it, and New- 
York was divided; so that a convention of only eight states 
decided by a majority of six, that the states should be anni- 
hilated. It was late in the session before twelve states assem- 
bled; but whether an accession of votes, or the repentance 
usually attached to precipitancy, produced the ultimate dis- 
comfiture of the resolution to establish a supreme national 
government, can only be conjectured by computing the con- 
sequences likely to result from an excessive zeal for this con- 



APPENDIX 30 401 

solidating policy, and from a refrigeration inculcated by an 
accession of votes or a firm opposition. 

"However this may be, it is plain that some members of the 
convention came with preparatory impressions that the distinc- 
tion of states ought to be destroyed, and availed themselves of 
a thin convention to obtain a footing for that opinion. On 
the first day of the session, two projects are offered, both 
founded upon the principle of a supreme national government, 
and on the second, the deputies of six states resolve to annihi- 
late thirteen. The hastiness of this movement indicates a de- 
sign to obtain a victory by surprise, ascertains the existence of 
a concert unfaithful to credentials, and displays a rooted hos- 
tility to the state governments. A blow so unexpected and 
violent was endeavoured to be suspended by succinctly urging 
in the adverse resolution, that it was the duty of the conven- 
tion 'to carry into execution the design of the states/ but not 
a single day is allowed for consideration, and the treachery of 
sacrificing duty to prepossession is instantly perpetrated. The 
states and the duty are entombed together, by a resolution to 
establish a supreme national government. 

"At the threshold of the business, we clearly discern that 
the convention was apprized of the meaning of words. One 
resolution asserts that a government merely federal would not 
answer, and that a supreme national government ought to be 
established. The rival resolution rejects the words national 
and supreme, as incompatible with a federal union. One avails 
itself of the intimation from Congress in favour of a na- 
tional government, and rejects the intimations of the same 
Congress in favour of a federal government; the other pre- 
fers the latter intimations, because they were legitimated by 
the states, and rejects the former, because it was rejected by 
the states. These adverse opinions were evidently dictated, 
one by the political opinion already invented, of a consolidated 
nation; the other, by the actual existence of United States. 
The contrast between the two preliminary resolutions in a 
very important view, depends on a single word. One proposed 
'a supreme legislative, judiciary, and executive/ the other 'a 
legislative, executive, and judiciary/ excluding the word su- 



402 SECESSION AND CONSTITUTIONAL LIBERTY 

preme. This word was adopted as suitable for the proposed 
national government, and rejected, as inconsistent with the 
federal form of government, to which the states had con- 
fined their deputies. The adoption and rejection conspire to 
furnish us with a definition of this formidable word, both by 
the national and federal parties in the convention. The sense 
in which both of these parties understood it, caused its exclu- 
sion from the constitution, as inapplicable to a federal govern- 
ment. The advocates for a national government proposed to 
invest that form of government with a supreme power to 
'construe the articles of the union.' The advocates for a fed- 
eral government originally proposed to withhold supremacy 
from the legislative, judiciary, and executive, and though they 
at first failed, finally succeeded. As applied by the successful 
federal party to the supreme court, it evidently refers to in- 
ferior federal courts. Instead of a judiciary, invested with a 
supreme power to construe the articles of the union and to 
negative state laws, a limited judiciary is found in the con- 
stitution. To reject a supreme legislature and executive, and 
yet to retain a supreme judiciary, was never even suggested by 
either the national or federal party in the convention. As the 
project for a national form of government, bestowed the 
supremacy of construing the articles of the union and nega- 
tiving state laws, upon all its departments, by plain words; 
and the project in favour of a federal form entirely rejected 
this supremacy, it is doing the utmost violence to probability 
to imagine that the constitution by inference without plain 
words, and without its having been proposed in the conven- 
tion, should have both deprived the federal legislature and 
executive of a power to settle the construction of our federal 
articles and to negative state laws, and also have bestowed this 
enormous power exclusively on one federal court. 

"The word supreme is used twice in the constitution, once in 
reference to the superiority of the highest federal court over 
the inferior federal courts, and again in declaring that the 
constitution, and laws made in pursuance thereof, shall be the 
supreme law of the land, and the judges in every state shall be 
bound thereby.' Did it mean to create two supremacies, one 



APPENDIX 30 403 

in the court, and another in the constitution ? Are they collat- 
eral, or is one superior to the other? Is the court supreme over 
the constitution, or the constitution supreme over the court ? * 
Are 'the judges in every state' to obey the articles of the union, 
or the construction of these articles by the supreme federal 
court?" 

*John Taylor of Caroline, "New Views of the Constitution." Wash- 
ington, 1823, pp. 17-22. 



